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enjoyment of property during his own life, makes and executes a deed of it and places the same in the hands of a third person, with instructions not to deliver it to the grantee until after the grantor's death, or delivers it to the grantee himself with directions not to open the package containing it until after the grantor's death, and in either case his directions are disobeyed and the deed placed on record, the grantor may maintain an action to have the deed declared void. For the same reason equity will decree the cancellation of a deed which was placed in escrow and which was either fraudulently abstracted from the depositary by the grantee or fraudulently turned over to him without compliance with the conditions or the consent of the grantor.85 And the rule is the same where a deed or an agreement to sell is placed in the hands of the owner's agent, with instructions not to deliver it to the purchaser save on the performance of certain conditions, and the agent disobeys his instructions and delivers the deed without performance.86

§ 28. Substitution of One Instrument for Another.-It is ground for the rescission or cancellation of an obligation, or of defense to an action upon it, that it is not the instrument which the party intended to execute and supposed he was executing, but an instrument of a different kind which was fraudulently or surreptitiously substituted for the one agreed on, a trick, device, or misrepresentation having been practised to secure his signature.87 This rule may be invoked, for example, where a person who meant to execute a mortgage and supposed that such was the character of the instrument which he signed, discovers that a deed had been

84 Thompson v. Owens, 121 Mich. 138, 79 N. W. 1092; Gatt v. Shive (Tex. Civ. App.) 82 S. W. 303.

85 Jackson v. Lynn, 94 Iowa, 151, 62 N. W. 704, 58 Am. St. Rep. 386; Hogueland v. Arts, 113 Iowa, 634, 85 N. W. 818; Rubie Combination Gold Min. Co. v. Princess Alice Gold Min. Co., 31 Colo. 158, 71 Pac. 1121; Conklin v. Benson, 159 Cal. 785, 116 Pac. 34, 36 L. R. A. (N. S.) 537.

86 Triggs v. Jones, 46 Minn. 277, 48 N. W. 1113; Wiard v. Brown, 59 Cal. 194.

87 Papke v. G. H. Hammond Co., 192 Ill. 631, 61 N. E. 910; Jackson v. Security Mut. Life Ins. Co., 233 Ill. 161, 84 N. E. 198; Hendrix v. People, 9 Ill. App. 42; Johnson v. Carter, 143 Iowa, 95, 120 N. W.

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substituted for it,88 or where one meaning to sign a will is similarly tricked into executing a deed, or where a deed in fee is substituted for an option to purchase," or for what was intended merely to be a lease of the property," or where the paper which one signed under the belief that it was merely a receipt for money turns out to have been a promissory note, 92 or where an applicant for a policy of life insurance of a certain kind receives a policy of an entirely different kind, and finds that he was misled or tricked into signing the wrong application.9

But it is a sound general rule of law that a person of average intelligence, in the full possession of his senses, must exercise a reasonable measure of care and prudence to avoid being victimized. Unless seduced into a false sense of security, he must be on his guard against fraud and treachery, and cannot be heard to complain of a fraudulent substitution which he had sufficient intelligence and knowledge of the subject to detect, where he was not prevented from investigating the matter for himself by any trick or persuasion of the other party. It is not sufficient, therefore, merely to show that the instrument which actually was signed is different from what the party supposed he was signing. Relief may sometimes be given in such a case on the ground of mistake. But that is altogether a different matter from fraud, and governed by a different set of rules. If fraud is the defense relied on, the party must show something more than the mere substitution of one instrument for another. He must show that the substitution was fraudulent. He must overcome the ordinary presumption that a person who is able to read has acquainted himself with the contents of any business document before attach

88 Gumpel v. Castagnetto, 97 Cal. 15, 31 Pac. 898.

89 Fellbush v. Fellbush, 216 Pa. 141, 65 Atl. 28; Carter v. Walden, 136 Ga. 700, 71 S. E. 1047.

90 Gillis v. Arringdale, 135 N. C. 295, 47 S. E. 429.

91 Tufts v. Tufts, 123 U. S. 76, 8 Sup. Ct. 54, 31 L. Ed. 91.

92 Ribner v. Kleinberg (Sup.) 122 N. Y. Supp. 239.

93 Bostwick v. Mutual Life Ins. Co., 116 Wis. 392, 89 N. W. 538,

92 N. W. 246, 67 L. R. A. 705; Lierheimer v. Minnesota Mut. Life Ins. Co., 122 Mo. App. 374, 99 S. W. 525; Mutual Life Ins. Co. v. Hargus (Tex. Civ. App.) 99 S. W. 580.

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ing his signature. Hence, in the case supposed, he must show such facts as that he was unable to read, that the paper was misread to him, that its contents were concealed from him, that he was prevented or dissuaded from reading it, that it was of such a technical nature that a perusal of it would not have enlightened him, or that he justifiably relied on the representations of the other party as to the nature of the instrument. 95 As to the last point, there is authority for the proposition that a mere false representation as to the character of the instrument is enough to make out a case of fraud, irrespective of the question whether or not the party could read, as, where it is falsely stated to him that the paper which he is asked to sign is a note instead of a mortgage, or a deed instead of a lease, or a mere receipt for money instead of a release of damages. And even if this rule is too broad, as excluding entirely the question of the party's own negligence, there are certainly numerous cases in which he will be justified in relying on any statements made to him by the opposite party, and therefore will be entitled to relief if misled by false and fraudulent misrepresentations. Such a case exists, for instance, where one of the parties occupies a position of trust or confidence towards the other, or where their intimate relationship (as in the case of parent and child) justifies the most implicit confidence. So, an applicant for life insurance is warranted in relying on what the company's agent tells him in regard to the application and the terms of the policy to be issued.98 And in general, if the defrauded party can show, in addition. to a false representation, any trick or artifice resorted to in order to prevent him from discovering the cheat, his case for equitable relief will be complete. This is true, for instance, where the other party took advantage of his igno

94 See, infra, § 52.

95 Hardy v. Brier, 91 Ind. 91; History Co. v. Dougherty, 3 Ariz. 387, 29 Pac. 649.

96 Tillis v. Austin, 117 Ala. 262, 22 South. 975; Gillespie v. Hester, 160 Ala. 444, 49 South. 580. And see, infra, §§ 56, 57.

97 Tufts v. Tufts, 123 U. S. 76, 8 Sup. Ct. 54, 31 L. Ed. 91. 98 Mutual Life Ins. Co. v. Hargus (Tex. Civ. App.) 99 S. W. 580; Green v. Security Mut. Life Ins. Co., 159 Mo. App. 277, 140 S. W.

rance to deceive and impose upon him, or took measures to prevent him from ascertaining the real character of what he was signing," or where a person unfamiliar with business and unable to read English is induced to sign a confession of judgment by the false assurance and pretense that it is a chattel mortgage, 100 or where one who is entirely unaware of the formal requisites of deeds and of wills is falsely induced to sign a deed, supposing it to be a will.101 For similar reasons, relief may be given in a case where it is shown that, in consequence of the highly technical nature of the subject and of the phraseology employed, the person would not have discovered, from even an attentive reading of the paper presented to him, that it was a substitute for what he supposed he was signing.102 So a policy of life insurance may be canceled at the instance of the insured where he shows that he was led into signing an application for a different kind of policy than that which he contracted for by the false representation of the company's agent, and that the agent hurried him into signing without due consideration, and that he was deceived by a misleading indorsement on the policy shown him and by certain prominent headlines in it.103 Again, one cannot be charged with such negligence or inattention as should preclude him from relief unless he was in the full possession of his faculties at the time. To trick a drunken man into signing a contract materially different from the one to which he had verbally agreed when sober is fraud justifying rescission of the contract.1 104 But in an action on a written contract, an answer alleging an antecedent oral agreement, and that the written contract was substituted therefor after objection, and upon threat of a breach of the oral contract by the plaintiff, and in reliance on a statement by the plaintiff that other parties who had previously signed were satisfied with

99 Clements v. Life Ins. Co. of Virginia, 155 N. C. 57, 70 S. E. 1076. 100 Fieseler v. Stege, 86 Hun, 595, 33 N. Y. Supp. 749.

101 Carter v. Walden, 136 Ga. 700, 71 S. E. 1047.

102 Mutual Life Ins. Co. v. Hargus (Tex. Civ. App.) 99 S. W. 580. 103 Glassner v. Johnston, 133 Wis. 485, 113 N. W. 977.

104 Merchants' Nat. Bank v. Brisch, 154 Mo. App. 631, 136 S. W

the written contract, does not allege such fraud as to avoid the contract.105

§ 29. Fraudulent Substitution as to Subject of Purchase. If a grantor of land, in fulfilling an agreement to convey a certain parcel of land for a stipulated price, is induced by fraud or misrepresentation, upon receipt of that price, to execute a deed conveying another parcel also, he may rescind and recover as to the parcel fraudulently included, but not as to the parcel intended to be granted, except upon payment or tender of the money received.100 Conversely, it is the right of a purchaser to rescind on discovering that the deed given to him describes and conveys a parcel of land different from that which was pointed out to him and which he agreed to buy.107 And of course these principles apply equally to the purchase and sale of chattels as to dealings in real estate. 108 Thus, where one bargains for the purchase of a bicycle of a certain well-known and highgrade make, and the seller is perfectly aware of what is in the buyer's mind, but fraudulently delivers to him a spurious wheel of a different manufacture and of inferior grade, the buyer may rescind, at least if he had no reasonable opportunity to discover the cheat until after accepting the bicycle.10 The same rule was applied in a case where an automobile was represented to the buyer as being of the style and equipment of a certain year, but the car sent to him was of an earlier and inferior make.110 So, where a seller of musical instruments knew that the buyer wanted a pianola piano, and knew that the instrument delivered was.

109

Dec. 92, 1 Am. Rep.

105 Bright v. Siggins, 2 Pa. Super. Ct. 106. 106 Bartlett v. Drake, 100 Mass. 174, 97 Am. 101; Walker v. Swasey, 2 Allen (Mass.) 312; Chambers v. Wyatt (Tex. Civ. App.) 151 S. W. 864.

107 Abbott v. Dow, 133 Wis. 533, 113 N. W. 960; Lindquist v. Gibbs, 122 Minn. 205, 142 N. W. 156; Smith v. Roseboom, 10 Ind. App. 126, 37 N. E. 559.

108 Kenyon Printing & Mfg. Co. v. Barnsley Bros. Cutlery Co., 143 Mo. App. 518, 127 S. W. 666; Howe Mach. Co. v. Willie, 85 Ill. 333; Doylestown Agr. Co. v. Brackett, Shaw & Lunt Co., 109 Me. 301, 84 Atl. 146; People v. O'Brien, 209 N. Y. 366, 103 N. E. 710; Handy v. Roberts (Tex. Civ. App.) 165 S. W. 37.

109 Smith v. Kingman, 70 Minn. 453, 73 N. W. 253. 110 Grout v. Moulton, 79 Vt. 122, 64 Atl. 453.