substance of the oral negotiation.

But the plaintiff contends that, even so, it was such negligence and folly on the part of the defendant to sign without reading a paper which he had the opportunity to read that the law will not relieve him from the consequences of his foolishness.

[7] Whether the negligence of the defrauded party will defeat the defense of fraud has been much debated, and courts have come to different conclusions. The question has arisen more frequently in actions for deceit. And many courts have held in effect that, when the party defrauded might by the exercise of reasonable care have ascertained the truth, he had no right to rely upon the representations of the other. But in the case of fraudulent misrepresentations the rule is settled otherwise in this state. In Eastern Trust & Banking Co. v. Cunningham, 103 Me. 455, 70 Atl. 17, we said:

"If one intentionally misrepresents to another facts particularly within his own knowledge, with an intent that the other shall act upon them, and he does so act, he cannot afterwards excuse himself by saying, 'You were foolish to believe me.' It does not lie in his mouth to say that the one trusting him was negligent." This rule was affirmed in Harlow v. Perry, 113 Me. 239, 93 Atl. 544. ported by numerous cases

L. R. A. 593.

In Great Northern Mfg. Co. v. Brown, 113 Me. 51, 92 Atl. 993, the defendant signed without reading a contract to purchase goods, when he had reason to suppose from the previous conduct of the seller, and the seller's agent, that he was to receive them free. He had an opportunity to read the paper before signing. He may have been negligent in that he did not read. The court held that his signature was procured by fraud, and sustained his defense. It is true that the fraudulent artifices in that case were more numerous and more elaborate than in this. But the principle established in that case applies to this one. It is that in a case between the original parties, when one is fraudulently misled as to the contents of a paper which he signs without reading, he is not estopped by his negligence from setting up the fraud, as he might be after third parties had acted upon it.

Carlisle & Co. v. Bragg, Eng. L. R. (1911) 1 K. B. Div. 489. This view is supported, we think, by the greater weight of authority and by the better reason.

In the first place, it must be held that the presentation of the paper for the defendant's signature was itself a representation that its contents were the same as agreed upon in the The rule is sup-oral negotiation. As was said in Trambly v. cited in note, 37 Ricard, 130 Mass. 259:

[8, 9] The more limited question whether one who signs a paper without reading it is so far concluded that he cannot set up that his signature was induced by a fraudulent misrepresentation as to its contents has also received varying answers. There is a general accord that a paper signed by one who cannot read or write may be defeated by proof of such misrepresentation. So, generally, when the paper is misread to the person who then signs without reading. It is also generally agreed that a negotiable promissory note in the hands of an innocent holder cannot be so defeated. And the courts in

a few states, notably Indiana and Iowa, hold squarely that even between the original parties, if one who can read and write signs a paper without reading it, it is such negligence that he cannot be permitted to say that its contents were misrepresented to him. But we think the weight of authority is to the contrary.

The plaintiff relies upon Maine Mutual Marine Ins. Co. v. Hodgkins, 66 Me. 109, the language of which case certainly does support the principle for which he contends. But that case was a suit on a promissory note, given pursuant to a previous contract signed without reading. The misrepresentations relied upon to show fraud appear not to have been so much misstatements of the contents of the instrument, as of its legal effect. And the court said, it is not fraud, "if one misapprehends, and, misapprehending, misstates the legal effect of an instrument." We have no occasion to criticise this

conclusion.

"The jury may well have found that the production of the writing at that time was in itself an affirmation on the part of the defendants (plaintiff here) that its terms did not differ from proved from the acts and conduct of a party the terms of sale agreed upon. Fraud may be quite as effectively as from his declarations.

** *

And any act falsely intended to induce a party to believe in the existence of some other material fact, and having the effect of producing such belief to his injury, is a fraud."

"There is ample authority," said the court in Weil v. Quidnick Mfg. Co., 33 R. I. 58, 80 Atl. 447, a case apparently on all fours with this one, "that as between the parties to a written contract, where one party is induced by the false statements of the other to sign the same, he is not bound thereby, and may defend against the contract on the ground of fraud, even though he was negligent in signing without reading it. * * * When he undertook to write the order, he was bound to write it according to the agreement, and if it did not embody the agreement, and was signed by inadvertence or negligence, that would not preclude the defendant from avoiding it on the ground of fraud."

In New Jersey, it has been held that, while | whether fraud shall prevail or negligence, it signing without reading generally binds, there would seem that a court of justice is quite is an exception to the rule, and that, when a as much bound to stamp out fraud as it is to signature to a contract has been procured by foster reasonable care. fraud or imposition practiced upon the signer with intent to deceive him as to the import of the paper he signs, he may attack it for fraud, although he might have discovered the fraud perpetrated upon him by reading the paper and he was guilty of negligence in not doing so. Dunston Lithograph Co. v. Borgo, 84 N. J. Law, 623, 87 Atl. 334; Alexander v. Brogley, 62 N. J. Law, 584, 41 Atl. 691.

We think the doctrine of the cases cited is sound, and we affirm it. The conclusion follows that it was error to take this case from the jury by directing a verdict for the plaintiff, and the exceptions must be sustained. In accordance with the stipulation of the parties, the mandate will be: Judgment for the defendant.

(6 Boyce, 437)

TO SERVANT-QUESTIONS FOR JURY. In law action for alleged negligent death of servant by falling from scaffold defectively fassupported, the case could not go to the jury tened, erected of old lumber, and not properly where there is no evidence that the collapse of the scaffold was due to any of the defects alleged.

The case of Western Mfg. Co. v. Cotton, 126 Ky. 749, 104 S. W. 758, 12 L. R. A. (N. S.) 427, was in all essential respects like this one, even to the fact that the contract as signed was for the sale, instead of the con-1. signment, of jewelry. The court said that it was immaterial whether the contract was misread, or was written differently. In either case the act of obtaining the signature was a fraud, and that the agent's "baseness is not offset in law by the mere negligence of the other party, who relied on what he had no reason to doubt," and that even gross negligence does "not preclude an inquiry into the truth as to whether he was in fact misled by the strategem of his adversary." The court, remarking that some of the earlier cases enforced a harsher doctrine, noted that the trend of the courts is to liber

* *

*

alize the defense in this class of cases.

In Linington v. Strong, 107 Ill. 295, the court said that:

* * *

*

"The doctrine is well settled that, as a rule, a party guilty of fraudulent conduct shall not be allowed to cry negligence,' as against his own deliberate fraud. While the law does require of all parties the exercise of reasonable prudence, there is a certain limitation to this rule, and, as between the original parties to the transaction, we consider that, where it appears that one party has been guilty of an intentional and deliberate fraud, * he cannot escape the legal consequences of his fraudulent conduct by saying that the fraud might have been discovered had the party whom he deceived exercised reasonable diligence and care."

*

To the same effect are Eggleston v. Advance Thresher Co., 96 Minn. 241, 104 N. W. 891; Maxfield v. Schwartz, 45 Minn. 150, 47 N. W. 448, 10 L. R. A. 606; McBride v. Ma

con Telegraph Pub. Co., 102 Ga. 422, 30 S. E. 999; American Fine Art Co. v. Reeves Pulley Co., 127 Fed. 80S, 62 C. C. A. 488; Albany City Savings Inst. v. Burdick, 87 N. Y. 40; Wenzel v. Shulz, 78 Cal. 221, 20 Pac. 404. We have limited our citations on the question of negligence to cases of signing writings without reading them.

The law dislikes negligence. It seeks properly to make the enforcement of men's rights depend in very considerable degree upon whether they have been negligent in conserving and protecting their rights. But the law abhors fraud. And when it comes to an issue

Servant, Cent. Dig. § 1016.]
[Ed. Note.-For other cases, see Master and

2. TRIAL 139(1)

CONDUCT OF TRIAL TAKING CASE FROM JURY. While the court will always hesitate to take a case from the jury, nevertheless, when in its judgment plaintiff has failed to produce suffiin her favor, it is its duty so to do. cient evidence to warrant the jury in finding

[Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341.]

3. MASTER AND SERVANT

286(1)—INJURIES

TO SERVANT-QUESTIONS FOR JURY.

In an action for alleged negligent death of servant, in the absence of evidence tending to prove or from which the jury could infer any negligence on the part of the master, the case should be taken from the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1001.]

Action by Ella C. Zeigrist, widow of William Zeigrist, deceased, against Jacob F. Speer, trading under the firm name of G. I. Speer. On defendant's motion for nonsuit. Motion granted, and verdict directed for defendant.

Argued before PENNEWILL, C. J., and HEISEL, J., sitting.

Pa., and Reuben Satterthwaite, Jr., of WilHarry Reiss Axelroth, of Philadelphia, mington, for plaintiff. William T. Lynam, of Wilmington, for defendant.

Alias Summons Case for Negligence, No. 2, May term, 1914.

The plaintiff sued to recover damages from the defendant for the death of her husband caused by the collapse of a scaffold upon which her husband was working as a slater in the employ of the defendant.

Upon the completion of plaintiff's case, counsel for defendant moved for a nonsuit. The facts in the case, as well as the ground

upon which the motion was based, appear in the following opinion of the court:

HEISEL, J., delivering the opinion of the

court:

The right of the plaintiff to recover in this case is based upon the negligence of the defendant, that is, the failure of the defendant to perform some duty he owed to the dece dent.

After careful consideration, we feel that the motion for a nonsuit should be granted for two reasons:

[1] First, there is no evidence to submit to the jury from which it could infer that the scaffold collapsed for any of the causes alleged in the narr., and

[2, 3] Second, we find no evidence which tends to prove, or from which the jury could infer, any negligence on the part of defendant. While the court will always hesitate to take a case away from the jury, nevertheless, when in their judgment plaintiff has failed to produce sufficient evidence to warrant the jury in finding in her favor, it is their duty so to do.

The narr. alleges that the decedent was employed by defendant and was injured by reason of the breaking of a scaffold from which he was doing his work, and that said scaffold broke or gave way, (1) because it was de fectively fastened and secured with defective and insufficient nails, fasteners, etc.; (2) because it was erected with decayed, weather-tion and order a nonsuit entered. beaten, old and knotty lumber; (3) and (4) because it was not supported with adequate supports, outlookers and braces.

The testimony produced on the part of plaintiff showed how the scaffold was erected and that it was insufficient for the purposes to which it was put and that it collapsed, but there was no evidence given as to the cause of the collapse, or in what respect it was insufficient.

to

For the reasons stated, we grant the mo

Mr. Satterthwaite: If your Honors please, we refuse to accept a nonsuit.

HEISEL, J., charging the jury. For the reasons stated, we direct you to return a verdict for the defendant. Verdict for defendant.

(6 Boyce, 439)

TUCKER v. TUCKER.
(Superior Court of Delaware. Kent.
Feb. 19, 1917.)

DISMISSAL AND NONSUIT 58(3)—INVOLUN-
TARY-UNVERIFIED DIVORCE PETITION.

A divorce petition will not be dismissed because the notary's seal was not attached to the jurat, but permission will be given to attach it. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. § 136.]

Divorce action by Thomas Tucker against Florence Tucker. On motion to dismiss the petition. Motion denied.

Argued before PENNEWILL, C. J., and BOYCE, J.

W. Watson Harrington, of Dover, for plaintiff. Arley B. Magee, of Dover, for defendant..

The testimony further showed that the decedent had been a slate roofer for over twenty years, that the universal rule of his trade was for the workmen to construct their own scaffold upon which to work, out of such material, fit for that purpose, as they could find around the job; or if a scaffold had been already erected by other workmen on the same job, to examine it, and if found sufficient for their purpose, to use it; otherwise, strengthen it, or if necessary, take it down and erect another that would be sufficient for their purpose. That on the morning of the accident the defendant, by whom decedent was employed, directed decedent and two other men employed as roofers to go from the shop of defendant to Twenty-Seventh and Moore streets, in the city of Wilmington, to do the slate work on certain houses being erected there. The defendant did not accompany them to the houses. Upon their arrival at the place where the work was to be done, they found a scaffold from which they could do their work already erected by other workmen, not in the employ of the defendant. Decedent was requested by one of his fellow workmen to examine the scaffold to ascertain if it was sufficient for their purposes. The evidence does not disclose whether or not decedent did, in fact, examine the scaffold, but does show that decedent left them and, about ten minutes afterwards, all of them began to put the materials to be used by them upon the scaffold and started to work. After they had been working about one hour the scaffold PENNEWILL, C. J. We decline to dismiss gave way, throwing them all to the ground the petition. The notary may at any time and so injurying decedent that he died with- during the day attach his seal to the affidavit.

in three days.

On motion to dismiss the petition on the ground that the seal of the notary was not attached to the jurat. Motion denied.

When the case was called, on the first day of the term, Mr. Magee asked leave to appear specially for the defendant, for the purpose of moving to dismiss the petition, on the ground that the notary's seal was not attached to the affidavit annexed to the petition. Leave to appear granted.

Mr. Harrington objected to the dismissal of the petition, on the ground that the absence of the seal from the affidavit was a clerical omission on the part of the notary, and asked that the notary be permitted to attach his seal during the day.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Court of General Sessions of Delaware, New named in the information, testified that the Castle. April 9, 1917.)

accused sold him beer, at the time and place laid in the information. It appeared that the other two persons named in the information were not present. Counsel for the accused, thereupon, moved to quash the information for the reason that the single count therein charged either three distinct sales, and was, therefore, duplicitous, or a joint 2. INDICTMENT AND INFORMATION 147sale to the three persons named, and it was DUPLICITY-NECESSITY OF DEMURRER. Duplicity in an information is a formal de- contended that a fatal variance had been fect, advantage of which must be taken by de-shown between the allegation and the proof. The motion was denied. When the state

[Ed. Note.-For other cases. see Indictment rested, counsel for the accused moved that and Information, Cent. Dig. §§ 490-494.] the jury be instructed to return a verdict of

3. INDICTMENT AND INFORMATION 196(7)-not guilty. This motion was likewise denied.

[Ed. Note. For other cases, see Intoxicating not, therefore, duplicitous. If it were, duplicLiquors, Cent. Dig. § 274.]

the offense charged, and is not prejudicial support of the latter ground relied upon. to the accused.

For other cases sce same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes