different instrument, is guilty of such negligence as will render him liable thereon.30 The rule is said to be founded upon the principle that a party who is in possession of his faculties and able to read can know the character of the instrument which he is signing, and owes the duty to know this to every party who may be subsequently affected by his act. By affixing his signature to the instrument, the credence of the world to every statement and promise therein is invited and an omission on his part to ascertain what the provisions and statements are, constitutes negligence. 31 Ordinarily, however, the question of what constitutes negligence on the part of the maker is held to be one of fact for the jury.32 And mere failure of an illiterate person to procure some one to read a note for him before signing it can not be held, as a matter of law, to constitute such negligent signing thereof as would prevent him from controverting its execution even against a bona fide holder.33 So where two persons called on the person whose name was signed to a note, several days before it was executed, and as a result of their negotiations with him he was appointed agent for a certain territory for the sale of cornshellers, which were to be forwarded to him, but before they were received another party called and procured his signature to what was represented to be a paper in the nature of a receipt of a certain number of cornshellers, claimed to be at a certain depot consigned to him, and in response to the signer's statement that he feared the paper might be a note, he was assured that it was not, and he was unable to read English, and had no neighbor within a mile, it was held in an action by a bona fide holder of the instrument, which was in fact a note, that the question whether he was negligent 30 Ort v. Fowler, 31 Kans. 478, 2 Pac. 580, 7 Am. Rep. 501, wherein it is said: "If he has eyes and can see he ought to examine; if he can read he ought to read; and he has no right to send his signature out into the world. affixed to an instrument of whose contents he is ignorant. If he relies upon the word of a stranger he makes that stranger his agent. He adopts his reading as his own knowledge, what his agent knows he knows, and he can not disaffirm the acts of that agent done within the scope of the authority he has intrusted to him." 31 Ort v. Fowler, 31 Kans. 478, 2 Pac. 580, 47 Am. Rep. 501. 32 Ray v. Baker, 165 Ind. 74, 74 N. E. 619; Hopkins v. Hawkeye Ins. Co., 57 Iowa 203, 10 N. W. 605, 42 Am. Rep. 41; National Exch. Bank v. Venemans, 43 Hun 241, 4 N. Y. 363; Bowers v. Thomas, 62 Wis. 480, 22 N. W. 710. 33 Ray v. Baker, 165 Ind. 74, 74 N. E. 619. 34 in signing the same was for the jury and in this case it was held there could be no recovery. But it is also held that one who signs a note without reading it must show legal excuse for not doing so before he can be permitted to set up the defense of fraud as to the character of the paper, since fraud which will relieve a party who can read must be fraud which prevented him from reading the note. Thus, where one in the absence of trick or device or emergency signs a note prepared by the opposite party, without reading it, he can not set up the defense of fraud in its execution.35 And the maker may be precluded from setting up the defense of fraud practiced in the execution of the note, on account of his negligence in the premises, 36 especially where the note has passed into the hands of an innocent purchaser before maturity for a valuable consideration.37 So, the negligence of the signer will preclude the defense of fraud in execution where the maker signs without reading the instrument, and has no reasonable excuse for his failure to do so.38 In determining the question of negligence, the age, mental power, and physical infirmities of the one signing the note are among the elements to be considered.39 But the maker, who is ignorant and not skilled in the use of legal terms, was held not negligent in failing to read all the terms of a mortgage note before signing it.40 However, where one signed a note when its face was covered with a blotter, not knowing that it was a judgment note, without reading it, he can not set up the defense of fraud in its execution, as the character of the paper could have been ascertained by reading the note before signing it.41 34 National Exch. Bank v. Venemans, 43 Hun 241, 4 N. Y. 363. 35 Crawford v. Hunt, 25 Ga. App. 210, 102 S. E. 834. Where there was no reason for the signer of a note to repose confidence in the agent of the payee, and there was no reason for haste in its execution, the failure of the agent to fully state the contents of the note will not constitute fraud in its execution. Harrison v. Lee, 13 Ga. App. 346, 79 S. E. 211. 36 Ensign v. Lehmann, 192 Ill. App. 578; Stevens v. Lagerquist, 210 Ill. App. 496; Wickham v. Evans, 133 Iowa 552, 110 N. W. 1046; First Nat. Bank v. Hall, 169 Iowa 218, 151 N. W. 120; O'Shea v. Lehr; 182 Mo. App. 676, 165 S. W. 837. 37 New Madrid Banking Co. v. Poplin, 129 Mo. App. 121, 108 S. W. 115. 38 First Nat. Bank v. Hall, 169 Iowa 218, 151 N. W. 120; Commercial State Bank v. Judy, 133 Ill. App. 35. 39 Kalamazoo Nat. Bank v. Clark, 52 Mo. App. 593. 40 Wickham v. Evans, 133 Iowa 552, 110 N. W. 1046. 41 Ensign v. Lehmann, 192 Ill. App. 578. § 101. Instruments executed, accepted or delivered on Sunday. Though it may be shown as a defense to an action between the parties, that a note or bill of exchange was executed or accepted and delivered on Sunday, yet if such an instrument bears the date of a secular day, the maker or acceptor will be estopped to set up such defense as against a bona fide holder taking the same before it became due for a valuable consideration and without notice, 42 where there is nothing on the paper itself showing that the paper was executed on Sunday. 43 So this rule has been applied in a case of drafts delivered and accepted on Sunday, but falsely dated as of another date. And in reference to this the court said: "The drafts were negotiable paper and bore date upon a day of the month corresponding to Saturday. If they were in fact executed on Sunday, they were void as between the original parties; and that they were thus void might be shown also against any holder affected with notice. But if Ball purchased them before maturity, and took them for a valuable consideration, in the due course of trade, and without notice of their immoral taint, the acceptor, having accepted upon Sunday, with no correction of the false date, and no indication of the true time of the acceptance, is estopped from urging in defense of a suit against him by Ball that the drafts were drawn and accepted on Sunday. * This does not trench upon the rule that a Sunday contract is void; it only excludes the acceptor from treating those drafts as Sunday contracts, after he has given currency to them as Saturday contracts and with no timely disclosure that they were other than what they purported to be. It makes their date conclusive that they were Saturday contracts, and not Sunday contracts. The defense that a party's own act is void may be outlawed by the doctrine of estoppel, to protect innocent pur * * 42 Moseley v. Selma Nat. Bank, 3 Ala. App. 614, 57 So. 91; Trieber v. Commercial Bank, 31 Ark. 128; Harrison v. Powers, 76 Ga. 218; Clinton Nat. Bank v. Graves, 48 Iowa 228. And it has been held that such note is enforceable by an innocent transferee for a good but not a valuable consideration. Gooch v. Gooch, 178 Iowa 902, 160 N. W. 333, L. R. A. 1917C, 582; Hofer v. Cowan Co., 24 Ky. L. 355, 68 S. W. 438; Bank of Cumber- 43 Clark v. Barthold, 87 N. J. L. 48 chasers and prevent fraud."44 And where a note is delivered on a secular day, it is held that it is no defense to an action thereon that it was signed on a Sunday, it being declared that the note becomes a contract at the time of delivery.45 And it has been decided that in an action by a transferee after maturity, the fact that the note, though purporting to have been executed on a week day, was executed on a Sunday, can not be set up in defense thereto by the surety where it is not shown that such defense could have been set up by him against the payee.46 But where the contract, which was the consideration of the note, was made on Sunday, and the note was made and delivered on that day to the original payee, such facts were declared to be a good defense to an action by him on the note.47 And where a note is given on Sunday the fact that the consideration was goods purchased on a week day is held not to alter the rule, in an action by the payee. And it has also been decided that there can be no recovery on a note given on a week day for a contract completed on a Sunday,49 or on a note executed on such a day where the consideration was a tort growing out of an unlawful Sunday contract, as where the consideration for a note was an injury done to a horse and wagon by careless or negligent driving on a Sunday. 50 Again, where a note executed on Sunday is void as in violation of a penal statute, there can be no recovery on a renewal note made on Sunday and delivered by the maker to another to be delivered to the payee on the following day.51 And under such a statute there can be no recovery against a surety on a note so executed by him, in an action by the payee to whom it was delivered by the principal, the payee taking the same in good faith and with no knowledge as to the date of execution.52 So a Sunday note, void under the laws of a state, can not, as between the parties, 44 Ball v. Powers, 62 Ga. 757. 45 Bell v. Mahin, 69 Iowa 408, 29 N. W. 331; Bank of Cumberland v. Mayberry, 48 Maine 198. See Hall v. Parker, 37 Mich. 590, 26 Am. Rep. 540. 46 Leightman v. Kadetska, 58 Iowa 676, 12 N. W. 736, 43 Am. Rep. 129. 47 Cranson v. Goss, 107 Mass. 439, 9 Am. Rep. 45; Allen v. Deming, 14 N. H. 133, 40 Am. Dec. 179. 48 Morgan v. Bailey, 59 Ga. 683; McAuley v. Reynolds, 64 Maine 136; Miller v. Lynch, 38 Miss. 344. See Foreman v. Ahl, 55 Pa. St. 325. 49 Kountz v. Price, 40 Miss. 341. 50 Tillock v. Webb, 56 Maine 100. 51 Davis v. Barger, 57 Ind. 54. See Stevens v. Wood, 127 Mass. 123. 52 Parker v. Pitts, 73 Ind. 597, 38 Am. Rep. 155. be ratified by a subsequent promise to pay the same made on a week day, as the transaction, being illegal in its inception, will not be purged of its illegality by a subsequent promise, it not being in the power of parties to render a contract legal which the law declares to be illegal. 53 53 Pope v. Linn, 50 Maine 83. See Tucker v. West, 29 Ark. 386; Reeves v. Butcher, 31 N. J. L. 224. |