NEW YORK CENT. & H. R. R. CO. v. DIFENDAFFER, 125 F. 893

JENKINS, Circuit Judge (after stating the facts as above).

The court correctly charged the jury that the burden of proving fraud rests upon the party asserting it; that fraud must be proven by clear evidence; that if the contract in question was executed without fraud or misrepresentation on the part of the Pullman Company, that contract constitutes a valid defense to the action; that mere failure on the part of the plaintiff to read the contract which he signed would not amount to fraud on the part of the Pullman Company, if the plaintiff at the time had opportunity given to him to read and his failure to read was his own negligence.

In Baltimore & Ohio Southwestern Railway Company v. Voigt, 176 U. S. 498, 20 Sup. Ct. 385, 44 L. Ed. 560, it is ruled, in a somewhat similar case, that one occupying a like position to that of the defendant in error here, and under a like contract, was not a passenger, and that such a contract did not contravene public policy, and exonerated the railroad company from liability, if the contract was entered into freely and voluntarily and without fraud.

So that the question here is whether there was evidence proper to be submitted to the jury to sustain the plea of fraud in the execution of the contract in question.

The rule in the federal courts is “that, before the evidence is left to the jury, there is or may be in every case a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the burden of proof is imposed”; and that it is not proper to submit the cause to the jury merely because some evidence has been introduced, unless that evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence.

Commissioners of Marion County v. Clark, 94 U. S. 278, 24 L. Ed. 59. We are of opinion, considering alone the testimony of the plaintiff below, that there is absolutely no evidence of fraud upon which the cause should have been submitted to the jury. There was no representation, true or false, made to him with respect to the contents of the paper. Giving to his testimony the fullest effect to which it is entitled, the case is simply that of one who could read, but did not read, the paper before he signed it.

Assuming that he was an illiterate man and unable to comprehend from the language employed the nature of the contract which he was requested to sign, he neither asked the officers of the company for an explanation, nor did he seek the advice of any other person. It is merely the case of one executing a contract without reading it; and in such case, where no imposition has been practiced upon him, the omission to read is no defense to the contract. The plaintiff below was in health and vigor. He was not prevented from reading it, and there was no misrepresentation to him of the nature of the document.

He deliberately elected to sign and did sign the document without reading it. Under such circumstances the contract is binding. Chief Justice Gibson, with his usual clearness and terseness, in Greenfield’s Estate, 14 Pa. 496, states the rule thus: “If a party who can read will not read a deed put before him for execution, or if, being unable to read, will not demand' to have it read or explained to him, he is guilty of supine negligence, which, I take it, is not the subject of protection, either in equity or at law.” The rule has been abundantly sustained by the courts. Thus, in Upton, Assignee, v.

Tribilcock, 91 U. S. 45, 23 L. Ed. 203, the court says: “It will not do for a man to enter into a contract and, when called upon to respond to his obligations, to say that he did not read it when he signed it, or did not know what it contained. If this were permitted, contracts would not be worth the paper on which they were written; but such is not the law. The contractor must stand by the words of his contract, and, if he will not read what he signs, he alone is responsible for his omission.” And in Andrus v. St. Louis Smelting & Refining Company, 130 U. S. 643, 9 Sup. Ct. 645, 32 L.

Ed. 1054, it is said: “The law does not afford relief to one who suffers by not using the ordinary means of information, whether his neglect be attributable to indifference or credulity.” See, also, Chicago, St. P., M. & O. Ry. Co. v. Belliwith, 28 C. C. A. 358, 83 Fed. 437; Chicago & N. W. Ry. Co. v. Wilcox, 54 C. C. A. 147, 116 Fed. 913; Insurance Co. v. Hodgkins, 66 Me. 109; Pennsylvania Railroad Co. v. Shay, 82 Pa. 198; Keller et al. v. Orr, 106 Ind. 406, 7 N. E. 195; Albrecht v. Milwaukee & Superior Railroad Company, 87 Wis. 105, 58 N. W. 72, 41 Am. St. Rep. 30.

In the latter case, the party seeking to avoid his contract was a German. He did not read the paper he signed, and said he could not read it, and did not know whether it was read to him or not, and did not know the contents of it; and the court said that it cannot be tolerated that a man shall execute a written instrument and, when called upon to abide by its terms, say merely that he did not read it, or did not know what it contained. It is needless to pursue the subject. The rule has been established time out of mind. I Shep. Touch. 56 (30 Law Lib. 121).

The plea of fraud was not sustained by any evidence whatever. The plaintiff below was a free man, with liberty to contract or not, as he saw fit. It was his duty to read and to understand the contract of employment which the Pullman Company required. He does not pretend that there was any misrepresentation to him, or, in fact, any representation whatever of the contents of the instrument. He deliberately elected to sign the document without reading or understanding it, and he must take the consequence of his own negligence. The paper signed is the highest evidence of the agreement of the parties.

Except in case of fraud or mistake, it speaks conclusively the contract which the parties have made, and it may not be impugned by one party, where the other party has acted upon it, upon the ground that he misunderstood it, or that he refrained from reading it, or that he neglected to have the document explained to him. Where fraud or imposition or misrepresentation has intervened, the party is not bound; but, in their absence, failure to read or have it explained will not avail to annul the deliberate writing of the party.

The judgment is reversed, and the cause is remanded with a direction to the court below to award a new trial.