cited in the note21 indicate the trend of the decisions along this line. There can be no question that these circumstances have an important bearing upon the issue of liability or non-liability to the holder in due course.

In every case where a person is tricked into signing a negotiable instrument the broad question presented is: why did the signer not know what he signed? This question is really inclusive of all other matters pertaining to the issue of negligence. Granted that he does not know, his ignorance does not exempt him from liability to the holder in due course. He will be so liable if he had an opportunity to discover the truth but neglected to avail himself of it. The greater part of the discussion in the cases is directed toward the solution of the question: did the signer in this particular case possess this opportunity?

The cases, in the first instance, may be conveniently divided into two groups: those in which the signer was able to read, and those in which the signer was unable to read. Ability of the signer to read tends very strongly to prove negligence but it does not always do so. A person who can read, as a rule, will be negligent, but there are many cases where the circumstances free him from this charge and

21The following cases treat the facts of old age, illness, infirmity, and illiteracy as material:

Mitchell v. Tomlinson, supra, n. 16: Maker was 70 years of age, an invalid for 30 years, and could read only with great difficulty. Judgment for maker affirmed. Palmer v. Poor, supra, n. 15: In affirming judgment for the maker the court took into consideration the fact that defendant was "old, feeble and ill." Green v. Wilkie, 98 Iowa 74 (1896): Judgment for maker affirmed. Maker illiterate.

Soper v. Peck, supra, n. 15: Judgment for maker affirmed. Maker was "a poor scholar."

Beard v. Hill, supra, n. 17: Judgment for plaintiff reversed. Defendant could not read or write.

Willard v. Nelson, 35 Neb. 651 (1892): Judgment for maker affirmed. Maker illiterate.

Whitney v. Snyder, 2 Lans. (N. Y.) 477 (1870): Judgment for plaintiff reversed because the trial court excluded evidence "that he [defendant] was unable to read ***"*

Nat. Exchange Bank v. Veneman, supra, n. 14, at p. 245: Judgment for defendant affirmed. "As the maker could not read the English language he was obliged to rely upon the representations made by the other party or consult some third person. *** It cannot be said that it was negligence per se not to seek his neighbors ***."

First Nat. Bank of Watonga v. Wade, supra, n. 7, 16: Decree of cancellation affirmed. Maker was an "aged, infirm negress, of poor eyesight and hearing, unable to read."

Walker v. Ebert, 29 Wis. 194 (1871): Directed verdict for plaintiff reversed. Maker, a German, could not read or write English.

Griffiths v. Kellogg, supra, n. 19, at p. 295: Judgment for defendant affirmed. "Whether the respondent, being unable to read the paper which she signed, was guilty of negligence to estop her from setting up this defense against a bona fide purchaser, was fairly submitted to the jury, and answered by their verdict for her." Bowers v. Thomas, supra, n. 19: Judgment for plaintiff reversed. Maker 72 years of age, could not read or write.

he will be held not liable. On the other hand, proof of a person's inability to read tends strongly to prove freedom from negligence, but here again, the circumstances may be such that he should be held negligent and, therefore, liable to the holder in due course.

When the signer is not able to read, the possibility of his gaining information as to the contents of the instrument submitted to him rests either with the party with whom he is dealing or with some third party. There are two situations. The rule with respect to the first is, that a party who is unable to read, either because of illiteracy or seriously impaired vision, there being no third person present or readily available, will not be negligent in relying upon a statement by the party with whom he is dealing as to the contents of the paper which he signs.22 The rule with respect to the second situation is,

22Webb v. Corbin, supra, n. 16: Judgment for defendant affirmed. The evidence affirmatively showed that the maker lived by himself and that at the time of signing there was no one, other than the agent of the payee, nearer than two miles away. On these facts, defendant maker was held not negligent in relying upon the reading of the adverse party.

Green v. Wilkie, supra, n. 21: Judgment for defendant affirmed. Defendant who could not read relied upon the statement of the husband of the payee, the procurer of the signature, the payee not present, for his information concerning the contents of the instrument, but the court held that he was not negligent because the proposed transaction was between himself and his father, and the party who fraudulently procured his signature was apparently acting as a friendly assistant and not as an adverse party. The court said, at p. 8o: "This was a case remarkably free from reason for, or grounds of suspicion. *** We think the case is free from negligence on the part of defendant."

Willard v. Nelson, supra, n. 21: Judgment for defendant affirmed. Maker was illiterate. The court said, at p. 653: "Only the two parties to the transaction being present when the paper was signed, the defendant was compelled to trust to the reading thereof to the agent of the payees. Whether the defendant was guilty of negligence or not was for the jury to determine from all the facts and circumstances in evidence. If he was free from negligence or fault and was tricked into signing the note, as the jury must have found, **then the plaintiff cannot recover, although he may be a bona fide holder."

Contra:

Mackey v. Peterson, supra, n. 13, 15: Judgment for plaintiff affirmed. Maker could not read English and there was no one within a half-mile who could read English. Court said, at p. 301: "Where a party, through neglect of precautions within his power, affixes his name to that kind of paper without knowing its character, the consequent loss ought not to be shifted from him to a bona fide purchaser of the paper. Tested by this rule, the facts which defendant offered to prove would have been no defense. He signed the paper voluntarily. He was under no controlling necessity to sign without taking such time as might be needed to inform himself of its character. If he could not read it himself, there was no reason, except, perhaps, his own convenience or haste, why he should not postpone signing until he could have it read by some person upon whom he had a right to rely.

This case, while it does not in terms repudiate Foster v. MacKinnon, defines negligence in such a way that very little was left of the rule. Rule in Mackey v. Peterson changed by statute. See Minnesota Gen. Stat., 1913, Sec. 6015, and see Yellow Medicine Co. Bank v. Tagley, 57 Minn. 391, 394 (1894), where the court said: "This statute applies only when the party believes that he is not signing a negotiable instrument at all, and seems to be an adoption, with some modification, of the doctrine discussed in the case of Mackey v. Peterson, 29 Minn. 298, decided

that a party, who is unable to read, from whatever cause, and a third party is present or readily available, will be negligent if he does not request such third party to inform him of the contents of the paper, but relies upon a statement by the party with whom he is dealing as to the contents of the paper which he signs.23 There are two exceptions: (1) where the third party present is associated in some way, not necessarily with respect to the pending transaction, with the person who requests the signature, in which case the signer will not be deemed negligent by failing to request such third party to read the instrument to him;24 and, (2) in a case where there exist special reasons calculated to induce the signer to repose confidence in the party with whom he is dealing which are not present when the transaction is conducted with a stranger. In such a case the signer will not be negligent in relying upon the adverse party's statements.25

shortly prior to the passage of this law, and of which doctrine Foster v. Mackinnon, L. R. 4 C. P. 704 is the leading case.' See also Bedell v. Hering, 77 Cal. 572 (1888).

Hinkley v. Freick, 112 Minn. 239, 242 (1910): "We are of opinion that this statute did not extinguish, repeal, or modify the common-law defense [that fraud was a defense against a holder not in due course], but added a new and additional defense."

23 Lindley v. Hofman, supra, n. 16, at pp. 244, 245: In distinguishing Webb v. Corbin, supra, n. 16, the court said: In that case the maker could not read and could not see and lived by himself two miles from any town. "Under these facts it was held that he had a right to rely upon the representations of those with whom he was dealing, and that he was not guilty of negligence.' In the present case "it was shown that [the maker] had a wife, and it is possible that he had children. He does not aver that his wife could not read. It is not shown that he could not have procured some one other than McGee [the adverse party] to read the note for him, or that he lived remote from other persons who could read."

24Nat. Exchange Bank of Auburn v. Veneman, 43 Hun (N. Y.) 241 (1887), supra, n. 14, 21: Judgment for defendant affirmed. Defendant could not read English. A 17 year old boy, who had driven the stranger to defendant's place was present but was not asked to read the paper. The court said, at p. 245: "As the maker could not read the English language he was obliged to rely upon the representations made by the other party, or consult some third person. *** It cannot be said *** that it was negligence per se not to seek his neighbors and learn from them the contents of the writing. The subject matter of the negotiations was not of great importance With respect to the failure

of the maker to exhibit the paper to the boy the court continued, at p. 246: "***this young man was the apparent companion or servant of the party with whom the defendant was transacting the business; and were it not for that circumstance we should be of the decided opinion that it was the duty of the defendant to consult him as to the contents of the paper."

25 First Nat. Bank v. Hall, supra, n. 16: Judgment for plaintiff affirmed. Trial court held defendant, who could not read, negligent because he did not request his sons who were present and who could read, to read the instrument to him. The court said: "We do not think that in every instance an illiterate man must ask some one other than the party seeking his signature to an instrument to read it before he signs it. In the case of *** an old acquaintance and trusted friend, carelessness might not be imputed if the signer was deceived by relying on the representations of the other party. The facts before us are different."

Bowers v. Thomas, supra, n. 19, 21: Judgment for plaintiff reversed because of trial court's refusal to charge the jury that the defense was available if defendant was by fraud, induced to believe that the note was for a sum less than what

If a third party is present and the maker requests and obtains information from him which proves to be untrue and the signer is still misled, he has done all the law requires of him and accordingly is not deemed negligent.26 Or, if after having obtained correct information from the third party and by a trick subsequently perpetrated upon the signer, he is induced to affix his signature to some paper other than the one which was read to him, he not being negligent in failing. to discover the trick, will not be regarded as negligent.27

Where the signer is able to read and does not do so, there are three somewhat divergent rules. The prevailing rule is that in the case of a signer who is able to read but does not read the paper submitted to him and relies upon the statement or purported reading by the party with whom he is dealing, it is a question of fact for the jury or for the trial court sitting without a jury, whether such a signer is to be deemed negligent. But there is a strong tendency to reverse a finding of no negligence when the case is reviewed on the evidence.28 The second

it was. On the question of negligence court said, at p. 485: "The facts proved in this case were, we think, sufficient to negative any want of reasonable care on the part of the appellant. ***he could not read the instrument he was called upon to sign; the other signer was the father of the person for whose benefit the note was made, and he could not read it; but he was a man in whom the appellant had confidence. The only other person present when the note was signed was the son, for whose benefit the note was given. Under this evidence it seems to us that it was clearly a question of fact for the jury whether the appellant was chargeable with any negligence in signing the note in question, without taking further measures to ascertain the nature of the contract he was signing.'

26Shenandoah Nat. Bank v. Gravatte, supra, n. 15: Judgment for defendant affirmed. The court said the question of negligence was for the jury. The party who obtained the note was accompanied by a real estate agent who appeared to be disinterested. This party confirmed the statement of the other party that the instrument was but a receipt. The court continued, at p. 596: "Assuming that this testimony is true, we do not think it can be said, as a matter of law, that [the maker] was guilty of negligence in signing the instrument. In fact he did what most men would have done under like circumstances. He availed himself of the best and only means at hand for informing himself of the contents of the paper.

***

27First Nat. Bank of Watonga v. Wade, supra n. 7, 16, 21: Decree of cancellation affirmed. Maker could not read. Instrument was read to maker by a girl residing with her. Payee diverted maker's attention and substituted the note signed. The court said she took every precaution possible to know the exact contents of the papers before she signed them and was not negligent.

28 Nebeker v. Cutsinger, supra, n. 16, at p. 451: Judgment for defendant reversed. "*** Where a man who can, without difficulty, read, executes a paper without reading it, trusting to the party to whom it is executed for a statement of its contents, or trusting to the reading of it by the latter, there being no substantial reason shown for not reading it himself, is guilty of negligence.'

Douglass v. Matting, supra, n. 16, at p. 500: Judgment for defendant reversed. "It would be manifestly unjust to permit the maker * * * to defeat the note, on the ground that through his own culpable carelessness while dealing with a stranger, he signed the instrument without reading it or attempting to ascertain its true contents."

Freedley v. French, supra, n. 9, at p. 342: "Whether she was negligent was a question of fact for the jury *** It can hardly be said, as matter of law, that a party is guilty of negligence who signs a paper relying upon the

view goes a step further and asserts that as a matter of law a person, signing under these circumstances, is negligent.29 The third view takes the other extreme and declares that, under these circumstances a signer as a matter of law is not negligent.30 But the court which held to this view for some time has since repudiated it and has adopted the view that, under these circumstances it is a question of fact for the jury.31 There is one type of case, where even the courts,

representations as to its contents and effect made by the party presenting it, and without himself examining it. If there may be such cases, this is not one of them."

Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109, 110 (1900): Judgment for plaintiff affirmed. "[Maker] claims he could not read English, but admits that he could read enough to tell what the meaning of the contract was His son, who acted as his bookkeeper, was present when the contract was signed Neither the father nor the son read or tried to read the contract, though the defendant admits that there was nothing to prevent it. Under these circumstances there was clear neglect in signing the contract without ascertaining its contents."

29Ort v. Fowler, 31 Kan. 478, supra, n. 16, at p. 482: Judgment for plaintiff affirmed. Defendant could read but not having his glasses relied upon the statement by the party with whom he was dealing. The court said: "A party is betrayed into signing a bill or note by the assurance that it is an instrument of a different kind. Under what circumstances ought he to be liable thereon? One view entertained is, that as he never intended to execute a bill or note, it cannot be considered his act, and he should not be held liable thereon any more than if his name had been forged to such an instrument. A second view is, that it is always a question of fact for the jury whether under the circumstances the party was guilty of negligence. A third is the view adopted by the trial court, that as matter of law, one must be adjudged guilty of such negligence as to render him liable who, possessed of all his faculties and able to read, signs a bill or note, relying upon the assurance or the reading of a stranger that it is a different instrument. We approve of the latter doctrine."

30Anderson v. Walter, 34 Mich. 113, 120 (1876): Judgment for defendant affirmed. "I concede there may be cases where a party signing *** an instrument should be bound by the terms thereof, even though it turned out different from what he supposed it to be; but such cases cannot be carried so far as to hold that a party signing in good faith what he has heard read, and what purports to be a power of attorney, contract, deed, mortgage, or any similar instrument, shall afterwards be held liable in case a negotiable note of that date, which he did not know or suppose he was signing, turns up. No man has a right to suppose that a crime is about to be committed, or that he is going to be defrauded ***"

First Nat. Bank of Sturgis v. Deal, supra, n. 15, at. p. 594: Judgment for defendant affirmed. "It is a matter of every-day practice for persons to trust to the reading by others of documents which they sign, and this practice is necessary for the convenient transaction of business. It would do more harm than good to compel all persons who sign papers to trust to their own reading, which in many cases would be impracticable. While the negotiability of commercial paper should not be unduly hampered it is not desirable to encourage dealing with entire strangers and irresponsible persons on the faith that every genuine signature is binding on its maker in spite of fraud or forgery. It cannot be said that the equities of purchasers are any greater than those of innocent persons who have done nothing negligently or unfairly to mislead them. We see no reason to change the views on which this Court has hitherto acted, and we cannot see any new feature in this case."

31 These Michigan cases were virtually overruled in Van Slyke v. Rooks, supra, n. 17, wherein the court in reversing a judgment for defendant said, at p. 96: "We think it was the duty of the trial court to have charged more fully than it did upon the question of *** negligence ***; in saying this we are well aware of