
    May's Executors and Executrix, Appellants, vs. Stephen Seymour, Appellee.
    1. Where a person who cannot road or write is induced to make "his mark” to a writing, which is not read to him, and its contents not fully stated to him, and it is evident that he did not intend to consent to its tenor and effect, and he takes no benefit from it and does not ratify it, such writing cannot be hold to be his voluntary agreement In dealing with §uch a person it is incumbent upon the other contracting party to show, past doubt, that he fully understood the object and import of the writing, in order to charge him upon it.
    2. When the verdict of a jury accords with the law and the facts of the case, a judgment will not be reversed on account of an erroneous charge to the jury, or a refusal to give instructions which may be appropriate, especially when a correct charge should produce the same result upon the facts.
    Appeal from the Circuit/Court for Jefferson county.
    The facts of the case are stated in the opinion of the
    
      Pasco & Palmer for Appellants.
    
      T. L. Clarice for Appellee.
   Tiie Chief Justice

delivered the opinion of the court.

This was a proceeding under the act of 1868 relating to the unlawful detention of lands.

The complaint is that Stephen Seymour unlawfully withholds the possession of certain real estate, described as follows: a certain dwelling-house, formerly used as a schoolhouse, with the outbuildings near by, standing west of the public road running from the St. Augustine road in the direction of Drifton; also, the land adjoining thereto, which is occupied by him, containing by • estimate five acres of land, with the appurtenances, lying and being in the 'county of Jefferson.

To maintain the proceeding .plaintiffs offered in evidence an agreement in writing, under seal, dated January 1, 187"?!, signed by Asa May (since deceased) of the first part and Stephen Seymour of the second part, to the effect that the party of the first part “agrees to rent to the party of the second part twenty-five acres of land and houses for the said party of the second part to live in during the present year; and the said party of the second part agrees to pay as rent for the said land and houses one bale of lint cotton,” &e. This was signed by Asa May and by Seymour by making his mark

This paper was objected to as evidence because it did not describe the premises, but only a quantity of land. The court received the paper subject to the condition that the premises should be identified with those mentioned in the complaint b}r parol evidence. Testimony was introduced tending to show that the land referred to in the lease was the same land upon which the defendant then resided, a part of which, with the house he occupied, is the five acres sought to be recovered. It was further shown by testimony of both parties, that defendant had resided on the same place over ten years; that he claimed to have bought it and paid Alvin May for it, and that Asa May had never been in possession. It appears by the testimony on both sides that- the defendant could not write his own name; that he did not and could not read the lease, and. it was not read to him, and he did not know what it contained when lie signed it.

Defendant testified that he bought the place from Alvin Jifa}7 ten or eleven years ago, and paid him for it, and went into possession, and has been living there ever since; that after Mr. 'Alvin May had been “sold out,” and Asa May bought his property, the latter claimed that he bought this land in controversy, and wanted defendant to give it np to. him or pay rent, but defendant refused. May often mentioned the matter, and “kept after him about it,” and wanted him to sign a paper agreeing to pay rent. Defendant finally told Mr. May that if he, May, owned the land he would pay rent, but would not pay until it was decided. Shorty afterwards, Edwards, May’s agent, came and wanted him to sign a paper, which he said was a “paper for the rent.” He then told Edwards that the land was in controversy between him «and May, and if it was May’s land he was willing to paj7 rent, but that if it was his he would not pay any rent, and with this understanding he signed the paper. Toward the close of the year Mr. May came or sent to him to pay the rent, which he refused, and told him the cotton was gathered and housed on the place, but defendant refused to turn it out. May took no steps to collect the rent. Defendant afterwards ginned the cotton and sold it. Never surrendered the possession of any part of the land to May, who sowed oats there without his consent.

Plaintiffs’ counsel asked the court to charge the jury, that “if the jury find that the defendant was ignorant of the legal effect of the lease entered into by him, that ignorance does not excuse him, and he is bound by the lease, but if he was induced to enter into the lease by any fraud or deceit of the plaintiffs’- testator, then the lease is not binding upon him.” This instruction was refused, and the court charged “that if the jury believed from the evidence that the defendant did not know that by signing the paper read in evidence he was acknowledging the title of complainant to the land in question, and that he never intended by signing said paper to acknowledge the title of Mr. May, then said paper does not bind him to the extent of such acknowledgment.” To this the counsel of the plaintiffs expo^'l.

The jury found for the defendant, and a motion for a new trial being denied, and judgment having been entered thereon, plaintiffs appealed.

The errors assigned are that the court erroneously charged the jury as to the question of title being involved; that the court erred in refusing the instructions asked for by plaintiffs; that ignorance of the defendant as to the contents of the lease does not discharge him from its obligations, in the absence of fraud or deceit, or other unfair conduct on the part of lessor, and the ruling of the court misled the jury.

The jury did not find that the land described in the complaint had' been taken possession of, or that the possession was held under the provisions of the lease.

The defendant is shown to he an ignorant and illiterate person. He could neither read nor write; did not and could not read the lease; was not informed what it contained; it was not read to him, and he did not know its contents, but was induced, after being much importuned, to make liis mark to it. He claimed, from first to last, that he had bought and paid for the land, had been in possession for over ten years cultivating it, and it was the home of himself and his family; and this he testified to, and this was not contradicted. The complainants’ testator claimed also to have bought the land when Alvin May was “sold out,” and under this claim set about getting possession and ousting the defendant. This was effected so far as to obtain “his mark” to the writing, as appears in the testimony. Why was not the “land and houses” designated in the paper as the place where the defendant then lived? Was it presumed that lie might have intelligence enough to ask for the reading of it, and that he might, in that event, refuse to surrender the property he claimed lo have purchased and paid for, and claimed to own as against Asa May? And did the jury believe that the defendant had knowingly signed a paper, by the terms of which he would surrender his rights as a purchaser in possession, and acknowledge and recognize a landlord whose superior right he persistently denied? Did the defendant act with that prudence and caution which would have been exercised by one capable of judging of the effect of his acts ?

In this posture of affairs and this condition of the parties, with all this evidence before the jury, we are not inclined to disturb a verdict of a jury declaring the lease null, in that it is not the voluntary act of the defendant. In the language of Chief Justice Parker, in Dwight vs. Pomeroy, 17 Mass., 326, “Ignorance will be protected, if any advantage shall be taken of it by superior cunning or sagacity, * * * by the rules of law, as they now stand."

That this defendant, according to this testimon}', knowingly placed it in the power of the lessor to dispossess him, and voluntarily surrendered his right to defend his possession or Iris title, if he had any, cannot reasonably be pretended. He obtained no benefit whatever- from the lease, and has never ratified it.

As to the error alleged, that the court refused to instruct the jury, as requested, that the defendant’s ignorance of the legal effect of the lease did not relieve him from such effect unless he was induced to enter into it by fraud or deceit of the testator, the general proposition may be correct, (and would be applicable to one phase of the case if coupled with the further proposition that it .should be shown that the defendant knew the terms of the writing,) still> the instruction, as prayed for, if given could not have properly produced any other verdict upon the evidence.

As to the charge of the court, to which exception was taken, “that if the jury believe from the evidence that the defendant did not know that by signing the paper read in evidence he was acknowledging the title of the complainant to the land in question, and that he never intended by signing said paper to acknowledge the title of Mr. May, then said paper does not bind him to the extent of such aclcnowledgment while technically incorrect, in that it gave the jury to understand that the defendant was not bound by the legal effect of his agreement, unless he actually knew such legal effect; and, also, in that it suggested to the jury that the title of May was acknowledged by the signing of the paper; yet the charge, if made more accurate, to-wit: if the jury had been instructed that if the evidence had shown that the defendant did not know the terms of the agreement, or had been induced through his ignorance and the sagacity of May’s agents to sign the paper without being informed of its contents, he was not bound by its terms or their legal effect, the. verdict would undoubtedly have been for the defendant.

There having been no legitímate proof that the defendant occupied this land under the lease, or that he had knowingly acknowledged the complainant’s right of possession, the complainant was not entitled to a verdict under any instruction that should have been given. We think the verdict was in accordance with the law and the facts, and' in such case it should not be disturbed, although there may have been an-abstract error in the charge. See McKay vs. Lane, 5 Fla., 268; Proctor vs. Hart, Ib., 465; Doggett vs. Willey, 6 Fla., 482; Prescott vs. Johnson, 8 Fla., 391.

The judgment is affirmed.

The preceding opinion was rendered at the January term, A. D. 1880, and at the same term the appellants filed a petition for a rehearing, which was not disposed of till the present term.

The petition is as follows:

The respectful petition of the appellants shows to the. court the following matters, with their prayer for a rehearing of the cause:

The executors of the estate of Asa May instituted this action in the Circuit Court of Jefferson county, under the statute of 1868, against Stephen Seymour, to recover possession of five acres of land or thereabouts, which they claimed he unlawfully withheld from them.

This land was a part of twenty-five acres rented from their testator in his lifetime, and before his death all of the land had been restored to his actual possession but the -five acres sued for. Seymour refused* to give this part up to the executors of Asa May, who died soon after the close of the year for which Seymour had leased the land from him. It came out incidentally in the testimony that Seymour had been in possession of the land for some years while Alvin May held the plantation of which it formed 'a part; that the plantation was sold under an execution against Alvin May; that Asa May became the purchaser, and then claimed a right to control the portion occupied by Seymour.

After taking possession lie treats with Seymour, and they enter into a written and sealed lease, which was duly executed in the presence of two subscribing witnesses, and Seymour holds peaceful possession of twenty-five acres during the year A. D. 1877, under this lease, which was executed according to all the requirements of the statute in such cases provided.

The plaintiffs felt safe in resting their right to recover upon this lease, and, therefore, did not attempt to meet Seymour’s statements in his testimony as to his title under Alvin May, nor to his statements of conversations with Asa May, which are not evidence under our statute and ought not to influence the court. It was a written instrument, and in law embraced the entire contract of the parties; it included all previous verbal understandings that were to be retained; it could not be contradicted by the surviving contractor; it was under seal, which, of itself, imports a consideration; it was entered into voluntarily, as the testimony fully established; its contents were explained to Seymour. He admits that Edwards told him what it was. It is true that it was not read to him, but he did not ask to have it read. He signed and sealed the lease with his eyes open, and ought not to escape its terms on the plea of ignorance.

Then, too, it is evident from Croom’s testimony that Asa May took possession at the close of the year of all the land embraced in the lease except the few acres here sued for, and that Seymour made no effort to control or retain any more than the few acres around the house after the lease expired.

The petitioners believe that the court has overlooked the charge asked for by them, which was clearly applicable to the circumstances of the caso. The substance of it was:

If Seymour was induced by any fraud or deceit of May to sign the lease, it was not binding upon him; but ignorance alone would not excuse him. Such a charge, the petitioners believe, would have resulted in a verdict for them, for there was no charge of any unfair conduct upon May’s part in the transaction, and his character for fair dealing was so well known that it would have taken strong evidence to satisfy a jury of the vicinage that Asa May had imposed upon an ignorant man. Instead of the charge asked for, the court virtually charged that ignorance alone excused Seymour, and further misled the jury by charging upon the question of title. One of the most serious difficulties in cases of this nature is to keep the jury from confusion upon the subject of the title; and this part of the charge alone was enough to- affect the verdict.

This court finds the charge was erroneous, and if it was, the petitioners respectfully urge that their case ought to go before a jury with a correct charge. The jury are the sole judges of fact.

The plaintiffs did not deem it necessary to meet all the statements of defendant, and inferences from these statements might be drawn prejudicial to the testator’s character by those who obtain all their views of the case from the record without the knowledge oí the parties a jury would have.

It is respectfully suggested that this court may have unconsciously been thus affected, and been influenced by the apparent equities of the case rather than its strict legal points. The plaintiffs relied on these legal points, which have been already referred to. They relied upon the lease, upon the character for integrity enjoyed by the testator in his lifetime, upon the fact that. May did not impose upon Seymour’s ignorance, that the contents of the lease were stated to Seymour, that he entered into it voluntarily, that he occupied tire land in peace after executing it, that May recovered possession of the larger portion of the land after the year closed, and if Seymour did not know the full contents of the lease it was not because it was purposely kept back from him, but because he did not even ask that it be read to him.

It is respectfully suggested, too, that it would hardly be fair to sustain the judgment upon a different theory of the management of the case than was followed.

It was never claimed' in the course of the trial by the court or counsel that the burden of proof was upon plaintiffs, to prove upon Seymour’s part full knowledge of the contract he was entering into when he signed the lease; if it had been plaintiffs would have attempted to strengthen this point witli further evidence. Had the case been managed upon this theory the plaintiffs would have pursued a different course, and the erroneous charge given by the court below and accepted by the defendant’s attorney would seem to be reason enough for sending the case back to a jury, so that plaintiffs may have an opportunity to meet this view.

The executors respectfully pray for a re-hearing of -the case, and an opportunity to argue the points which presented themselves so forcibly to this court, but which the counsel for the defendant did not raise, and which therefore were not answered in their behalf, but they beljeve can be successfully answered, and they will ever pray, &c.

The CiiieF Justice

delivered the following opinion of the court on the petition for a re-hearing:

The petition for a re-hearing sets forth several grounds therefor, which are herein considered.

It alleges among other things, that it is shown that Seymour rented from May twenty-live acres of land, and that before the death of May all the land except live acres had been restored to Mr. May, which five acres is sued for, that no fraud is shown by which Seymour was induced to sign the lease, either by the pleadings or the lease; but that it is shown that Seymour was fully informed of the contents of the lease and signed it voluntarily, and made no complaint that he had been imposed upon.

Tt is inferentially suggested that in the opinion filed, there is an unjust imputation upon the character of Mr. May, now deceased. “We consider it entirely appropriate that the representatives of a deceased person take proper care to guard his memory.

While it cannot be necessary for this court to disclaim any intention to reflect upon the conduct or character of Mr. May, we must insist that a very strong impression was created in our minds by a careful examination of the testimony, that Seymour, because of his ignorance, had been led into an apparent assent to a contract, of the terms and the effect of which he was not informed, and which he repudiated at the very moment of making his mark to it, and which lie had always insisted he would not assent to. Mr. May does not appear to have been present when this was accomplished, and doubtless would have dealt more openly with Seymour, but certain it is, that Mr. May’s agent or agents, whether intending it or not, pressed this ignorant man into a seeming assent, against which his mind and his intention protested.

The petitioners say that it was not claimed at the trial that the burden of proof was upon-the plaintiff to show upon Seymour’s part full knowledge of the contract he was entering into when he signed the lease, and if he had been, plaintiffs would have attempted to strengthen this point with further evidence. What oral argument was made in-the court below we cannot know, but the question ivas fully presented by the record in the instruction, which appellant’s counsel asked the circuit judge to give to the jury; in the instruction which the judge gave to the jury and which was excepted to; in the brief and argument of counsel for Seymour in this court, and in the grounds assigned for error. The third ground in the assignment of • errors by the appellants is this: "3. The. ignorance of the defendant, of the contents of the lease, does not discharge him from its obligations in the absence of fraud or misrepresentation of other unfair conduct upon the part of the lessor, and the charge of the court, which was to that tenor, misled the jury and was erroneous.”

We are, therefore, still of the opinion that the question whether the defendant was bound under the circumstances which led to the making his mark to the paper in question, either with or without actual fraudulent intent on the part of the lessor’s agents, was submitted to this court by the respective counsel.

Petitioners say that the testimony of the defendant as to his conversations with Asa May is not competent evidence under our statute, and should not influence this court. That testimony was referred to in the opinion, it is true, but so far as it related to the conversation with May, it was of not much consequence in view of the testimony of otlier witnesses. Yet that testimony was given to the jury without objection, and having been so given and submitted to the jury, it is very questionable whether it can be objected to here, even if it appears clearly to have influenced the ^ is a well settled rule that in order to avail' himself of an alleged error in the admission of testimony, an exception must hg taken by a party to the ruling of the court in admitting» it, or refusing to strike it out. Very ' little, if anything, was proved by the testimony of the defendant, as to any direct transaction with Mr. May, which was not proved by unquestionable testimony. Most of his testimony related to the circumstances of his tenure, and the occupation of the land, and liis understanding of what the agreement was. The theory of his defence was that he was in rightful possession, as against Asa May, and that he did not hold in subordination to him.

The following is the material portion of the testimony on the part of the complainants: Blackburn testified that he witnessed the signing of the lease. It was drawn up by Mr. Edwards, who kept May’s books. Seymour signed it voluntarily. Edwards said to Seymour, the agreement is ready, and he wanted him to sign it now and close the matter up. Seymour said, “Well, if the land is Mr. May’s I will pay rent for it; if not, I will not;” and then signed it. Seymour is living in the house. On cross-examination witness says the lease was signed at Roach’s blacksmith shop. Seymour has been in possession many years — when Alvin May owned the plantation,' and after Asa May bought it. Heard him speak of it as his place or home. Edwards wrote Stephen Seymour’s name to the lease and Stephen made his mark, touching the pen. Defendant cannot read writing or write his name. ' The lease was not read to him in my presence.

Groom testified, describing the land now occupied by the defendant. As manager of the Asa May place he planted oats there last Year. When he went on the place as May’s superintendent -the hands were planting oats there, and he continued it and planted near to Seymour’s door. Was not disturbed by Seymour. Planted by May’s instructions; did not ask defendant’s permission to plant, and he gave none; did not ask him anything about it. Was instructed by Mr. May to put somebody else into the house, as some of the hands needed it; but Seymour refused to leave, claiming the house as his own. Mr. May died m the spring, and I said nothing more1 to Seymour until recently. S. Pasco, one of the executors, spoke to Seymour about the house last fall; he asked Seymour what he was going to do-about it. Seymour said he did not know, but would go up and see him about it. Witness asked Seymour, since Christmas, •what lie was going to do about it; that he wanted the house. Seymour said if the ease was decided against him he would give it up; if not, he would not. Witness asked Seymour what he signed the lease for if the land was his; and Seymour said that the undei standing was that he was not to pay rent unless the place was Mr. May’s.

On cross-examination witness said that there used to be a cross fence separating the land included in the lease from the rest of the field on that side of the road, but witness had it removed.

S. Pasco, for complainants, testified that last fall, in company with Mr. Croom, the superintendent, he met Stephen Seymour on the public road and asked him if he was not going to give up the house. He acknowledged renting the land from Mr. May, and did not refuse to give up the house; said he would come up and see witness about it. He never came, and witness commenced this suit. On cross-examination, witness, being asked how defendant acknowledged renting the land, said it was in the course of their conversation that the land was spoken of as the land rented from Mr. May, and Seymour did not deny the renting, but said he would come up and see witness about the matter.

This is substantially all the testimony offered by complainants beside the lease. The testimony of the defendant need not be repeated at length here. He testified that he bought the place of Alvin May and paid for it before he (May) was “sold out,” and had been in possession ten or eleven years, living there. After Asa May, Edwards came and repeated Mr. May’s request to sign a “paper for the rent,” and that he told Edwards that the land was in controversy between him and Mr. May; and that if it was Mr. May’s land he would pay rent, but if it was defendant’s land he would not pay any rent; and with this understanding he signed the paper. That he could not read or write, the paper was not read to him, and he did not know what was in it when he signed it. He says, also, that though he • gave every opportunity by pointing out his property, no attempt was made by Mr. May, or his representatives, to .enforce the collection of the rent.

We think all the testimony bears upon the questions of the validity of the lease; whether Seymour was or became a tenant of May; whether the leasq was the agreement or expression of the mind of Seymour; whether, while always insisting that the land and house were his own, bought and paid for ten years before, he did voluntarily intend to surrender to one whose right he constantly disputed.

The testimony of Blackburn and Croom clearly settle these questions. Instead of this land having “been restored to the actual possession” of Mr. May by defendant, as alleged in this petition, complainants prove by Croom that lie took possession of the land, removed fences, plowed and planted by May’s instructions up to Seymour’s door without saying anything to him about it, and “Seymour did not disturb him.” It is clearly shown that when the lease was produced, already signed by May, Edwards said to Seyomur, the “agreement is ready” and wanted him to “sign it now and close the matter up.” It was not called a lease, but an “agreement.” What agreement? Seymour had always 'professed readiness to pay rent if the land belonged to Asa May, but if it was his own, he would not pay rent. There was a controversy existing about their respective rights. Seymour, in the act of making his mark to the paper, expressed what he understood the "agreement” to be. He had been told .it was an agreement “about rent.” He was willing to enter into an agreement about rent, and he repeatedly indicated what kind of an agreement it should be. The tenor of the whole evidence shows it, and shows what he supposed he was assenting to.

It is no answer to say that this phase of the case was not much argued before the court. The question was presented by the exceptions, the argument of Seymour’s counsel, and his written brief, and by the assignment of errors flatly; and it would be a denial of common intelligence to say that this is not the material question, and one that first and last enlists the attention in reading the record of this case. Nowhere does it appear that Seymour acknowledged this lease as his agreement, or that he was a tenant upon this land. Mr. Pasco says Seymour “acknowledged the renting” of the land from Mr. May, arid “did not refuse to give up the house but promised to go up and see about it.” The cross-examination shows that the “acknowledgment” was, that in the course of the conversation “the land was spoken of as land rented from Mr. May, and Seymour did not deny the renting,” but said he would “come up and see about it.”

With a person of ordinary education and'intelligence this might be treated as a circumstance showing that a tenant acknowledged his tenancy. Seymour’s tenure had been called a “renting” in the efforts to induce him to leave, (and it is well shown what kind of renting lie had assented to,) and in dealing with a person of his mental caliber, and being addressed by a person of intelligence and of different social position, it cannot fairly be exacted of him that he shall be deemed to assent, particularly when instead of assenting he evades discussion, aand postpones the subject by promising to “come up and see about it.”

Previous to the signing of the lease nothing was said to defendant about his becoming a “tenant” to May or paying rent that did not bring from' him the response that he would agree “to pay rent if the land was May’s,” and when told that the “agreement” was now ready and the matter must be closed up, he repeated what his understanding of the agreement was, and his understanding was not corrected by the agents of Mr. May then and there.

Under the circumstances can it be candidly pretended that Seymour did “with his eyes open,” without apparent consideration, without apparent benefit to himself, but on the contrary, to his probable detriment, enter into an agreement whereby he surrendered his supposed right to his land and home, while in the same breath he declares he will not and does not intend any such thing, unless he shall be satisfied that Mr. May has the better right? The question tried was not one of title, but whether Seymour had within three years held wrongful possession of the property against the consent of the plaintiff entitled to it. All the evidence was pertinent to or bore upon this issue, and the jury considered it; it all bears upon the question whether the lease is the contract of the defendant. Contracts are binding according to the mental comprehension and capacity of the contracting parties. “Where one places reliance upon another, the one trusted shall not take advantage of such confidence to the prejudice of the other.” New vs. Wambach, 42 Ind., 456; 65 Barb., 346.

In Foster vs. McKinnon, 4 Law R., (Common Pleas,) 704, (cited in Gibbs vs. Linabury, 22 Mich., 479-486,) a witness, Callow, who was acceptor of a bill, had produced the bill to the defendant, who- was advanced in life, for him to put his signature on the bade after that of one Cooper, the payee and first endorser, Callow not saying it was a bill, and telling the defendant that the instrument was a guarantee. Defendant did not see the face of the bill at all. But it-was of the usual shape and bore a stamp, the impress of which was visible at the back of the bill. Callow also testified that the defendant, believing that the .document was only a guarantee, then signed his name after Cooper’s. The court say: "It is invalid, not merely on the ground of fraud, 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 was appended. * * * In the case now under consideration the defendant, according to the evidence, if believed, and the finding of the jury, never intended to indorse a bill of exchange at all, but intended to sign a contract of an entirely different nature. It was not his design, and if he was guilty of no negligence, it was not even his fault that the instrument he signed turned out to be bill of exchange.”

In Selden vs. Myers, et al., 20 Howard, U. S., 506, 509, Chief Justice Taney delivering the opinion of the court, says: “It is true that Selden is an unlettered man, and can neither read nor write. He makes his mark to the instruments lie executed, and dealing with such a person, it is incumbent on Myers & Co. to show, past -doubt, that he fully undersioodtheobject andim.portof thewritings uponwhichthe-y are proceeding to charge him, and if they had faijed to do so the above mentioned testimony, offered by the appellant, as to the state of the accounts between them at the time, would have furnished strong grounds for inferring that he had been deceived, and had not understood the meaning of the ■written instruments he signed

The reasoning of Judge Taney disposes of the question of negligence on the party*of Seymour in not requiring the lease to be read to him before signing it. It was the duty of the persons of superior intelligence, who were dealing with him, to inform him fully, and a man so ignorant as Seymour is shown to be is not chargeable with negligence when dealing with persons who admit they were well aware of his want of intelligence. It is not necessary in this case to charge that Mr. May or his agents intended to deceive or defraud Seymour; the contract wants validity, as stated in Foster vs. McKinnon, “becausce the mind of the signer did not' aecomapny the signature.”

In view of this rule, so emphatically endorsed by Chief Justice Taney and the Supreme Court of the United States, the Circuit Judge very properly refused to giv,e the instruction asked for by the plaintiffs’ counsel, considering the capacity and degree of intelligence manifest to the court of this defendant; and the rule laid down goes very far toward sustaining the charge given by the court, to which the, complainants excepted. Considering the whole case, upon the law and the facts as they appear here, the proper tribunal to which the rights of these parties should be referred is one which is empowered to try the title to the property involved. The method adopted by Mr. May’s agents, of determining the rights of the defendant, does not seem to be the proper one.

"We are well satisfied that under the charge prayed for by complainants, if it had been given by the court, the jury could not, upon 'the evidence, .have found that this lease was the agreement of the defendant, or that he acquiesced in it in any manner after it was signed. We think further, that under any charge that might have been given, upon the facts as presented here, a verdict for the defendant must have been sustained; and this, without in the least reflecting upon the good name of Mr. Asa May.

The rehearing is refused.

Mit. Justice Westcott

delivered the following opinion on tiie petition for a rehearing:

Upon the evidence, omitting everything that might be excluded upon the ground that it referred to transactions between Asa May, deceased, and the defendant, I think there is enough to show clearly here that the defendant did not in fact assent to any surrender of his possession to Asa May. .

The law, as I understand it applicable to this case, is announced by Chief Justice Taney in Sheldon vs. Myers et al., 20 How., 509, to the effect that it is incumbent on a person dealing with another, who can.neither read nor write, to show past doubt that the ignorant man fully understood the object and import of the writings upon which he is proceeding to charge him. In this case it is not shown that the instrument was read or fully explained to the party unable to read or write and I do not think he can be held bound by the contract. The instrument being removed as evidence, I see no case for the plaintiff.

It seems to me here that the verdict was in conformity to the evidence, that the instructions were really more favorable to the plaintiff than the rule as announced by the Supreme Court of the United States which covers this case, and that to grant a new trial would be action in conflict with the rule sustained by the decisions of this court in the cases cited by the Chief Justice. As to the action of Mr. May, I do not see that he was guilty of any fraud or improper conduct.  