Harris v. Bingham

Annotate this Case

97 S.E.2d 453 (1957)

246 N.C. 77

James A. HARRIS and wife, Mary Frances Harris, v. Fannie Lou BINGHAM.

No. 238.

Supreme Court of North Carolina.

April 10, 1957.

*454 McDougle, Ervin, Horack & Snepp by R. B. McKnight, Jr., Charlotte, for plaintiffs, appellants.

No counsel for defendant.

PARKER, Justice.

Plaintiffs signed a contract drafted by defendant as their real estate broker to convey a house and tract of land owned by them to M. F. Stumpf which property the contract stated was free of all easements, except those for public utilities. When Stumpf discovered that a portion of the tract of land was subject to a right-of-way for a road, and that plaintiffs could not convey to him the property free of all easements, except those for public utilities, as they had contracted to do, he refused to consummate the purchase.

There is no allegation in the complaint that plaintiffs did not read the contract, or that they are unable to read, or that they were induced to sign the contract by fraud or deception, or that they were misled as to its contents. "The duty to read an instrument or to have it read before signing it, is a positive one, and the failure to do so, in the absence of any mistake, fraud or oppression, is a circumstance against which no relief may be had, either at law or in equity." Harrison v. Southern R. Co., 229 N.C. 92, 47 S.E.2d 698, 700.

This Court said in Williams v. Williams, 220 N.C. 806, 18 SE.2d 364, 366: "In this state it is held that one who signs a paperwriting is under a duty to ascertain its contents, and in the absence of a showing that he was wilfully misled or misinformed by the defendant as to these contents, or that they were kept from him in fraudulent opposition to his request, he is held to have signed with full knowledge and assent as to what is therein contained."

*455 The right to rely upon the assumption that another will exercise due care is not absolute, Union Trust Co. v. Detroit, G. H. & M. R. Co., 239 Mich. 97, 214 N.W. 166, 66 A.L.R. 1515, and must yield to the realities of the situation to the extent that if the plaintiff observes a violation of duty which imperils him, he must be vigilant in attempting to avoid injury to himself, Graff v. Scott Bros., 315 Pa. 262, 172 A. 659; 38 Am.Jur., Negligence, Sec. 192. If the defendant were guilty of negligence in failing to exercise reasonable care and skill as a real estate broker in drafting the contract of sale, a question not necessary for us to decide here, the plaintiffs are charged with full knowledge and assent as to the contents of the contract they signed, and they had actual knowledge that the property was not free of all easements, except those for public utilities, as stated therein. Plaintiffs charged with full knowledge that they could not convey title to the property, as they had contracted to do, entered into another contract to buy another house, evidently intending to pay for it in whole or in part with the purchase money received from Stumpf.

It is manifest that, if the defendant had recited in the contract of sale that a portion of the property was burdened with an easement for a roadway across it, Stumpf would not have purchased the property. Clearly, Stumpf's oral offer of $28,000 for the property was for property free of all easements, except those for public utilities. Plaintiffs allege that when Stumpf refused to go through with the purchase, they were forced to sell the property for $24,000, but they do not allege it brought less than it was worth, subject, as it was, to a right-of-way for a road across a portion of it. Plaintiffs have alleged no ultimate facts showing any damage to themselves. The demurrer admits the truth of allegations of fact contained in the complaint, but does not admit the legal conclusion that plaintiffs were damaged in the sum of $4,000. McKinley v. Hinnant, 242 N.C. 245, 87 S.E.2d 568.

Plaintiffs were guilty of utter heedlessness in signing the contract to convey the property to Stumpf with the statements therein as to easements. They cannot avoid their own heedlessness in executing and relying upon this contract, and then, call that heedlessness someone else's negligence. Plaintiffs' damage, if any, is in effect self-inflicted.

Affirmed.