stone, 56. But at present the mere reading over of a deed without an explanation of the contents would not be thought sufficient to show that the person executing it understood what he was doing (a). Mackin non. The doctrine has recently been expounded and confirmed by Foster v. the luminous judgment of the Court of Common Pleas in Foster v. Mackinnon (b). The action was on a bill of exchange against the defendant as indorser. There was evidence that the acceptor had asked the defendant to put his name on the bill, telling him it was a guaranty; the defendant signed on the faith of this representation and without seeing the face of the bill. The Court held that the signature was not binding, on the same principle that a blind or illiterate man is not bound by his signature to a document whose nature is wholly misrepresented to him. A signature so obtained "Is invalid not merely on the ground of fraud, where fraud exists, but on the ground that the mind of the signer did not accompany the signature; in other words, that he never intended to sign, and therefore in contemplation of law never did sign, the contract to which his name is appended. . . . The position that if a grantor or covenantor be deceived or misled as to the actual contents of the deed, the deed does not bind him, is supported by many authorities: see Com. Dig. Fait (B. 2) (c), and is recognized by Bayley, B. and the Court of Exchequer in the case of Edwards v. Brown (d). Accordingly it has recently been decided in the Exchequer Chamber that if a deed be delivered, and a blank left therein be afterwards improperly filled up (at least if that be done without the grantor's negligence), it is not the deed of the grantor: Swan v. North British Australasian Land Company (e). These cases apply to deeds; but the principle is equally applicable to other written contracts." (a) Hoghton v. Hoghton, 15 Beav. 278, 311. In the case of a will the execution of it by a testator of sound mind after having had it read over to him is evidence, but not conclusive evidence, that he understood and approved its contents: Fulton v. Andrew, L. R. 7 H. L. 448, 460 sqq., 472. (b) L. R. 4 C. P. 704, 711. (c) Cited also by Willes, J. 2 C. B. N. S. 624, and see 2 Ro. Ab. 28 S: the cases there referred to (30 E. 3. 31 b; 10 H. 6. 5, pl. 10) show that the principle was recognized in very early times. (e) 2 H. & C. 175, 32 L. J. Ex. Such questions The judgment proceeds to notice the qualification of the general rule in the case of negotiable instruments signed in blank, when the party signing knows what he is about, i.e. that the paper is afterwards to be filled up as a negotiable instrument (a). But here the defendant "never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature." He was no more bound than if he had signed his name on a blank sheet of paper, and the signature had been afterwards fraudulently misapplied (b). This decision shows clearly that an instrument executed by a man who meant to execute not any such instrument but something of a different kind is in itself a mere nullity, though the person so executing it may perhaps be estopped from disputing it if there be negligence on his part (c): and that, notwithstanding the importance constantly attached by the law to the security of bona fide holders of negotiable instruments, no exception is in this case made in their favour. The existence of a fundamental error of this sort, not merely in Equity as to particulars, but as to the nature and substance of the transgenerally actions, comes very seldom, if ever, to be considered by a court complicated with of equity, except in connexion with questions of fraud from circum- which it is not always practicable to disentangle the previous question, Was there any consenting mind at all? There is enough however to show that on this question the principles applied in courts of equity and in courts of law are identical. stances of fraud. Kennedy v. Green. Thus in Kennedy v. Green the plaintiff was induced to execute an assignment of a mortgage, and to sign a receipt for money which was never paid to her, "without seeing what she was setting her hand to, by a statement that she was only completing her (a) Whether this is a branch of the general principle of estoppel or a positive rule of the law merchant was much doubted in Swan v. North British Australasian Land Co. in the Court below, 7 H. & N. 603, 31 L. J. Ex. 425. In the present judgment the Court of C. P. seems to incline to the latter view. (b) L. R. 4 C. P. at p. 712. (c) Cp. Simons v. Great Western Ry. Co. 2 C. B. N. S. 620, where the plaintiff was held not bound by a paper of special conditions limiting the company's responsi bility as carriers, which he had signed without reading it, being in ་ execution of the mortgage deed itself, or doing an act by which she would secure the regular payment of the interest upon her mortgage-money." Lord Brougham expressed a positive opinion that a plea of non est factum would have been sustained at law under these circumstances (a). But his decision rested also on the defendant having constructive notice of the fraud, and no costs were given to the plaintiff, her conduct being considered not free from negligence. Cooke. In Vorley v. Cooke (b) there were cross suits for foreclosure Vorley v. and for cancellation of the mortgage deed. The alleged mortgagor had executed the mortgage deed at the instance of his solicitor, believing it to be a covenant to produce deeds. This mortgage so obtained was assigned to a purchaser for valuable consideration without notice, against whom no relief could have been given had the deed been only voidable. It was held that the deed was wholly void and no estate passed by it, and decreed accordingly that it must be delivered up to be cancelled. The similar decision Ogilvie v. Jeaffreson; in Ogilvie v. Jeaffreson (c) goes farther. For there the plaintiff, being a mortgagee, executed assignments of the mortgaged consistent. premises which were misrepresented to him as leases. He did therefore intend to convey some interest in the property, though not the same interest, nor to the same persons, as appeared by the deeds. And the case, so far as it decided that these deeds were absolutely void, seems not consistent with the limitation laid down in Thoroughgood's case (p. 374 above) and very recently affirmed by the Court of Appeal in Chancery. "When a man knows that he is conveying or doing something with his estate, but does not ask what is the precise effect of the deed, because he is told it is a mere form, and has such confidence in his solicitor as to execute the deed in ignorance, then a deed so executed, although it may be voidable upon the ground of fraud, is not a void (a) 3 M. & K. 699, 717, 718: (but see the following note). The M. R. seems to have thought the estate did pass (p. 713). Hence the variance between the form of the decree affirmed and Lord Brougham's view of the case. Stuart, V.-C.'s remark (2 Giff. 381) applies to the M. R.'s judgment, not to Lord Brougham's. (b) 1 Giff. 230 and see the reporter's note, p. 237. This decision seems to be within the authority (c) 2 Giff. 353. qu. if Distinc tion as to agreements of drunken man or lunatic. deed" (a). [The attempt might possibly be made to distinguish Ogilvie v. Jeaffreson on the ground that in that case the grantor was in complete error, if not as to the contents and substance of his grant, yet as to the person of the grantee: whereas in Hunter v. Walters the conveying parties knew not only that they were conveying some interest in the property their deed purported to deal with, but that they were conveying it to Walters. But such a distinction seems hardly tenable.] Empson's case (b) seems distinguishable. There the applicant bought land of a building society and executed without examination mortgage deeds prepared by the society's solicitor to secure the price. These deeds contained recitals that he was a member, and treated the whole transaction as an advance by the society to one of its own members. He was never admitted or otherwise treated as a member. The Court held that he was not a contributory in the winding up of the society. Here the matter of the fictitious recitals was collateral to the main purpose of the transaction. Observe that so far as the deed professed to treat Empson as a shareholder it was void, not only voidable: otherwise it would have been too late to repudiate the shares after the winding up order. It has been laid down that a man of business who executes "an instrument of a short and intelligible description cannot be permitted to allege that he executed it in blind ignorance of its real character" (c). But probably this is to be taken as an inference of fact rather than a statement of law; meaning not that the party is estopped in law from offering evidence to this effect, but that under such conditions his own evidence is practically worth nothing. We must here revert to the doctrine already stated in Ch. II. p. 78, that the contract of a lunatic or a drunken man is not absolutely void but only voidable: for it seems at first sight not consistent with the principles recognized by the Court of Common Pleas in Foster v. Mackinnon (supra, p. 375). It was in fact held by Lord Ellenborough (d) that "an agreement signed by a person in a state of complete intoxication is void, for such a person has no agreeing mind," and the judges of the Court of Exchequer were at least inclined to the same view in Gore v. (a) Hunter v. Walters, 7 Ch. 75; per Mellish, L. J. at p. 88. (b) 9 Eq. 597, where no authorities appear to have been cited. (c) Per Lord Chelmsford, C. Wythes v. Labouchere, 3 De G. & J 593, 601. (d) Pitt v. Smith, 3 Camp. 33. FUNDAMENTAL ERROR: CONTRACTS OF LUNATICS, &C. EXCEPTIONAL. Gibson (a). However it is now settled by the decision in Matthews v. Baxter (b) that the agreement of a drunken man known to be so by the other party is not a void agreement, but a voidable contract which after he becomes sober he may ratify so as to make it binding on the other party, and therefore on himself also: and the rule must be considered to be the same in the case of lunacy, having regard to the view taken in Matthews v. Baxter (b) of the effect of Molton v. Camroux (c). It is to be observed however (in addition to the reasons which have already appeared, p. 77 supra) that one who offers to contract with a drunken man or a madman, knowing his condition, does so at his peril. We have seen that if the drunkenness or lunacy be not actually or presumably known to the other party the contract is valid: and this is consistent enough, for a man who is apparently sane or sober cannot be supposed absolutely incapable of knowing what he is about. But except in this case the other party must be able to see that it is at least doubtful whether the man is capable of understanding the effect of a contract; if he chooses to disregard that doubt, he cannot afterwards complain of being taken at his word. He is in a manner estopped from saying that by reason of the other's incapacity there is no contract which can be made binding on either of them. The law says to him: You offer to contract with a man whom you have reason to believe incapable of contracting and if he chooses to hold you to the bargain when he comes to his right mind, it does not lie in your mouth to say there was no contract because he did not understand what he was about. If you thought he did understand it, you cannot complain of being in the same situation as if such had been the fact. If you knew he did not understand it, then (unless you meant to commit a fraud by taking an unfair advantage of his condition) you were careless enough to take the risk of his repudiating the contract, or you thought the mere chance of a ratification worth having: still less can you complain in that case that the contract is ratified instead of being repudiated. And you have the correlative benefit of being able, as in Matthews v. Baxter (b), to sue on the contract if it is ratified, or even if it is not repudiated within a reasonable time. (a) 13 M. & W. 623, 14 L. J. Ex. 151. (b) L. R. 8 Ex. 132. (c) 2 Ex. 487, in Ex. Ch. 4 Ex. 17; 18 L. J. Ex. 68, 356. 379 |