
    HERREID et ux., Respondents, v. CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY, Appellant.
    (159 N. W. 1064.)
    (File No. 4026.
    Opinion filed November 21, 1916.)
    Pleadings — Right-Of-Way. Deed, Signing Without Reading — Previous Oral -Conti-act — Sufficiency of Complaint for Damages.
    A -complaint against a railroad company for damages for injury to a spring, alleging that .plaintiffs executed, without reading, a right-of-way deed to the land on which the s-pring was located, that defendant represented to plaintiffs that tihie deed was pursuant to a previous oral agreement to the effect that such conveyance did not bar plaintiffs from recovering damages for injury to or destruction of the spring, that plaintiff in signing the deed, relied upon such representations, states a cause of action as against the objection that plaintiff failed to allege facts excusing reading of the instrument, such as inability ta read, through: poor eyesight; or lack of education. Fallow v. Chambers, 21 ,S. D. 128, distinguished.
    Appeal from 'Circuit Court, Roberts' -County. Hon. Ti-iomas L. Bouck, Judge.
    Action by Albert HeunreSdl and wife, against th-e Chicago, Milwaukee & St. Paul Railway 'Company, 'to- 'recover damages incidental to- use of -a -railroad niglht-of-way. Erom an order overruling a demurrer to the- complaint, defend-aat appeals.
    Affirmed.
    
      Wütiam G. Porter, and Ed. L. Grcmtham, for Appellants.
    
      Batterton & Bunde, for Respondents.
    Appellant cited; Earlo-w v. -Chambers, 21 S. D. 128; McGee v. Verity, (Mo.) 71 S. W. 472; Bostw-iclc v. Mutual Life Ins. Co., (W'is.) 92 N. W. 246; 'Commissioners v. Younger, 29 Cal. 172; Wallace v. Railway Co., (Iowa) 25 N. W. 772; Hazard v. Griswold, 2-i Fed. 178, 9 'Cyc. 538.
    Respondents cited: DeR-ue v. McIntosh, 26 S. D. 42, 127 N. W. 532; MJcCotmi-ck v. Wou-lpb, 11 S. D. 252, 76 N. W. 939; ¡Sioux Remedy Co. v. L'i-ndgren, 27 S. D. 123, 130 N. W. 49; CiV. Code, Sec. 1249; Eatheringh-anr v. L-o-ckhart, 30 S. D. 394, 138 N. W. 804.
   WHITING, J.

This appeal i-s from an order overruling a demurrer to the -complaint. Plaintiffs seek to- recover damages which th-ey claim to have suffered- (owing -to- defendant’s running its right of way -across their land -and, by excavating for same, cutting off the -supply -of water feeding a valuable spring. Antici-pat-ing a 'defense, plaintiffs allege that 'they executed a deed to the right of way, which, deed contains a release of damages, 'broad enough in its terms to 'release the damages now sought to he recovered; ’and -plaintiffs allege that prior to executing such deed ■plaintiffs and defendant entered into' 'an oral, agreement whereby defendant was to pay plaintiffs -a certain sum of money for .the right of way in question, it feeing specifically agreed that the conveyance of such right of way should Am no- manner preclude plaintiffs from recovering any damages that they anight suffer by injur)- to or destruction, of the spring; that, after such oral agreement was reached, the defendant, through- its agent, presented to plaintiffs an instrument which such -agent represented' was- merely a conveyance of the said right of way and would not 'bar or preclude plaintiffs from recovering- such damages as they might suffer by any injury to or destruction of the spring; that plaintiffs relied upon such statements, believing them to fee true, and believing that if they signed such instrument they would not fee bound beyond the terms of said oral agreement; and that they thereupon signed suda instrument without reading it.

It is. conceded by appellant that, if this writing is not binding upon the plaintiffs, their complaint pleads a good' cause of action; but appellant contends that inasmuch as' plaintiffs have failed to allege any .facts excusing the reading of the instrument, such as inability to read either through .poor eyesight or lack of education, the complaint fails to state a cause of action, citing’ Farlow v. Chambers, 21 S. D. 128, 110 N. W. 94. In the above-mentioned case the question- before this count was the sufficiency of the evidence to support ¡the verdict, and, while it is true that this court made some -statements and cited some 'authorities' that would tend to .support appellant’s' contention, such case might have been decided solely upon th-e ground! that the burden- was upon the party claiming the fraud to establish the same by clear and satisfactory evidence, and that the evidence in that case was not sufficiently clear and satisfactory. The -court cited 9 Cyc. 388, wherein it is held:

“As a written -contract is the highest evidence of the terms of an agreement between the -parties to- it, it is the duty of every contracting party to learn and know its contents before he signs and 'delivers it. He owes this duty to the other -party to the contract, because the latter may, and! probably will, pay his money and' shape his action in 'reliance upon' the agreement. He owes it to thie public 'which, as a matter of public policy, treats1 the written contract as a conclusive 'answer to the question', What was the agreement? Hence 'tire courts do not permit one to avoid a contract into' which -he has entered on the ground that he did not attend) to its terms, that he did not read the document which ha signed', that he supposed! it was different in its term's, or that it w'as a mere form.”

But the 'court failed to call attention' to 'the rule laid down in Cyc. in the same volume at page 390, toi-wit:

“O'f 'Courtse, if 'the other party induces 'the signer to1 sign the paper without reading it, and to rely on inis statement of the contents, this m!ay give the signer a right, if the statement was, fraudulent, to avoid the contract as against him on the ground of fraud.”

In Black on Rescission of 'Contracts and Cancellation of Writ-tem Instruments, the author calls attention to* the change toward liberality and toward the equitable rule which has taken place in the law relating to the rescission and cancellation of written instruments, and the learned author states that:

“Tire Procrustean standard of the ancient law, which refused all relief to the unhappy suitor unless he could .show that he had exercised ‘due care and diligence’ to avoid 'being cheated, or that bis eomchiot had been that of _ a ‘reasonably prudent man,’ was absurd, because it is precisely the credulous and unwary who are ■the easy victims of fraud- and who need the protection of the courts.
“But now, fortunately, this outworn notion has almost everywhere given place to the -better rule which we may venture to' call the ‘doctrine of comparative intelligence’ — a 'doctrine which moves the courts to probe the circumstances of each particular case,, •instead of judging all by a hard 'and' fast -rule, which allows no advantage to' a trickster because of his superior cunning, and no disadvantage to a dupe 'because of his careless or confiding nature or his lacle of experience or shrewdness, which exacts of a defrauded person no higher degree of care or -prudence than he,, as -an individual, might fairly have been expected to exercise, and which severely discountenances- the sharper’s plea that the man he has wronged was negligent ini failing to* detect the trick, — a doctrine, in short, which teaches, as observed' by the Supreme Court of Vermont, that ‘no rogue should enjoy his ill-gotten ■plunder for the simple reason that his victim is by chance a fool.’ ”

The above, is fully supported by 6 R. C. L. § 51, p. 632; Burlington Cumber Co. v. Evans Lumber Co., 100 Iowa, 469, 69 N. W. 558; Maxfield v. Schwartz, 45 Minn. 150, 47 N. W. 448, 10 L. R. A. 606; Shook v. Puritan Mfg. Co., 75 Kan. 301, 89 Pac. 653, 8 L. R. A. (N. S.) 1043; Western Mfg. Co. v. Cotton & Long, 126 Ky. 749, 104 S. W. 758, 12 L. R. A. (N. S.) 427; Hale v. Hale, 62 W. Va. 609, 59 S. E. 1056, 14 L. R. A. (N. S.) 221; Wilcox v. Am., etc., Tel. Co., 176 N. Y. 115, 68 N. E. 153, 98 Am. St. Rep. 650. In this last-case the court quotes the'following from an earlier decision:

“It is certainly not just that one who has perpetrated a fraud should be permitted to say to the .party , defrauded, when he demands relief that he ought net to, have believed or trusted -him. Where one sues another for negligence, his own, negligence contributing to tbe injury will constitute a defense to, the action; but where one sues another for a positive, willful wrong or fraud, negligence by which the party injured exposed himself to, the wrong or fraud will not bar relief.”

In the Shook oase the court said:

“A person who, obtains a signature by fraudulent representations, which are material and relied on by another, to, 'the effect that an instrument expresses a previous, agreement of tbe parties, when in- fact it contains a wholly different stipulation, has no, right to insist that the victim of 'his fraud shall be bound1, athough he had the -opportunity toi read the instrument and discover the fraud, but failed to da so". In such case the signing* of the paper, without reading it, involves more than the negligence of the signer, since the signature itself was procured by the -fraud of the other.”

When measured by the rules laid 'down in the above authorities, tlie complaint in question states a cause of action. The ovler appealed from is affirmed.  