This was an action of assumpsit instituted by appellant against the appellees. Exceptions were reseved by appellant to the action of the court in rulings on the evidence and in giving and refusing to give certain charges.
Defendant Butler, in testifying to what occurred between himself and the representative of the plaintiff, one Faulkner, at the time of the negotiations between them, which resulted in the delivery of the draft and the bill of lading to the bank, testified among other things, that he told Faulkner that he did not want to wait, as proposed by him, till Saturday and check on the bank for the money; that he did not want to do such a thing as that unless he could “get it on them,” (the bank ;) that he did not think the Lumber Company was safe; that he told Faulkner that he could neither read nor write ; that he did not know anything about “fixing up” matters of that sort; that Faulkner replied, that he knew all about it and would fix it up; that he “just left it all” to Faulkner and that Faulkner did not read the papers to him, &c. The witness was then asked this question: “What, if anything, did you say to him about releasing your lumber without the money? What was said on that subject?” Plaintiff objected to this question because, 1st, it was immaterial, irrelevant and illegal; 2nd, because it called for parol evidence to vary or contradict the terms of a written contract. Certainly• the first grounds of objection are untenable. It called for that which transpired, between the parties, at the rime of the transaction, relative to its subject matter. It called for declarations accompanying the main fact and explanatory of it. It was therefore a part of the res gestee. It was calculated to, and did elicit, evidence directly pertinent to the pleas of defendants, and to the theory of their defense, to-wit, that appellant bought the draft from them.
*137Admitting for the sake of the argument, that the words contained in the duplicate deposit slip handed said Butler, — <lTo be paid when collected,” or as elsewhere stated in the record, — “To be drawn against when paid,” — necessarily mean that the draft was taken for collection and not purchased, are the defendants concluded by it? Defendants’ testimony tends to show that Butler could neither read nor write, — indeed this is undisputed ; that he relied on Faulkner to prepare the papers according to the agreement; that the agreement was an outright purchase of the draft by appellant, and that said deposit slip was not read over to him. When one who can read and write executes or receives an instrument, he is, in the absence of misrepresentation, fraud or deceit, bound by it. And the fact that he did not read it, or was ignorant of its contents, is no defense to him. He ought to have read it, or have made proper inquiry as to its contents, and failing to do so, he must take the consequences. — Pacific Guano Co. v. Anglin, 82 Ala.492 ; Burroughs v. Pacific Guano Co.81 Ala. 258 ; Goetter, Weil & Co. v. Pickett, 61 Ala. 387 ; Foster v. Johnson, 70 Ala. 249 ; Campbell v. Larmon, 84 Ala. 500 ; Blum v. Mitchell, 59 Ala. 535.
But the rule is otherwise when the execution of the instrument is obtained by a misrepresentation of its contents, and the party signs a paper he did not know he was signing, and did not really intend to sign. It is immaterial, in the latter instance, that the party signing, whether he could read or not, had the opportunity to read the paper, for he may have been prevented from doing so, or from making inquiries as to its contents, by the very fact, that he trusted to the truth of the repre-rentation made by the other party with whom he was dealing, who undertook to give the information of the contents of the paper pn which the party accepting it relied and acted. Beck & Pauli Lith. Co. v. Houppert, 104 Ala. 503. He may show as between himself and the party with whom he dealt, what the real contract was. The court committed no error in overruling the objection.
Defendants having first introduced evidence tending to show that Dr. Thomasson was the vice-president of plaintiff corporation; that its place of business was in said Thomasson’s drug store; that he at times attended *138to its business, &c., then asked said witness Butler: “Now tell what Mr. Thomasson said to you about this transaction.” And witness, in answer to the question, stated, among other things, that he showed Thomasson the dt-posit slip, and told him that Faulkner had “played off” in giving it to him ; that Thomasson replied that they, the bank, had accepted the draft which bound the bank and made it safe for him and that the bank would pay him the money. The only objections made to this question bv the plaintiff was, that it was “irrelevant and immaterial,” and that “it seeks to vary or contradict the terms of a written contract.” The first of these objections were certainly not well taken. The evidence was not irrelevant and immaterial. The last objection raised, that “it seeks to vary or contradict the terms of a written contract,” was a good objection.
But the evidence was admissible notwithstanding, as tending to show, that defendant Butler when he ascertained the alleged fraud that had been practiced on him, made the fact known to this officer of the bank and repudiated the transaction, who assured him it was all right.
In response to the question, 1 ‘what did Faulkner tell you last summer about whether the draft had been paid or not?” propounded by defendants to said Butler, he answered; “He (Faulkner) said that the bank had made him pay it; that it was on the books and they, the bank, made him pay it.” Plaintiff objected to this question and moved to exclude the answer, because it was immaterial, irrelevant and incompetent. This objection was well taken, and the court erred in not excluding the answer. It was at best, the mere unsworn statement of Faulkner, and was therefore hearsay and incompetent.
The court committed no error in allowing defendant Butler to testify, that he had not sufficient education to read the deposit slip. It tended to explain his action in receiving it. Nor was it improper in the court to allow said witness to testify, that he first learned of the contents of the slip at Webb’s house. There was evidence by this witness, called out on cross-examination by defendants, tending to show, that Webb first informed him of the contents of the slip. And it was permissible for *139defendants to show not only when, but where this information was obtained.
There was no error in refusing charges one and two, asked by plaintiff. There was conflict in the testimony and these were charges on the effect of the evidence.
Charge No. 3 asked by plaintiff, was properly refused. The deposit slip, mentioned in the charge, contained other things besides the words, “To be drawn against when paid,” or as deposed by Faulkner, “To be paid when collected.” It was, even, according to plaintiff’s version of the transaction, a receipt for the draft; and in either view, the defendants were under no obligation to return it to plaintiff.
The charge is also further faulty in assuming, that if the defendants used the slip as evidence of their demand .on the bank, it necessarily follows, that they are committed to the truth of that part of it, which tends to show that the bank took the draft' for collection merely ; whereas it was possible for defendants to have retained the slip, to be used as evidence in so far as it spoke the truth (as they understood it) and no further. The charge is also calculated to mislead the jury. The term, “Used it as evidence”'is too indefinite. For aught appearing that term might have related to the introduction of the slip in evidence on the trial.
There was evidence tending to show that Webb & Butler were partners. Charge 4, therefore, should have been refused.
Charge 5, was properly given. The objection urged to it by appellant’s counsel is, that it ignored what transpired subsequent to the time when the draft was placed in the hands of the bank. The evidence does tend to show, that subsequent to that time, defendants received from the Lumber Company $541. We do not think this affects the propriety of the charge. Receiving the $541, from the Lumber Company might have some weight as tending to show, that the original transaction was a deposit for. collection merely, and not a sale of the draft. But the postulate of the charge is a sale of the draft. If there was a sale of the draft the fact that the defendants received from a third person, or the Lumber Company, a certain sum of money, even though they received it in payment, pro tanto of the purchase price of the draft, would not, of itself, alter the contractual re-*140lafcions between the plaintiff and defendants. Nor would it, of itself, abridge any right as holder of the draft which the plaintiff may have held against the Lumber Company. The plaintiff, as far as the evidence shows, still held the draft, with the bill of lading attached. Defendants are not sued as indorsers of the draft: that is not the theory of plaintiff’s case. Their suit is to recover the two hundred dollars loaned by them to defendants.
! Without the words, “on his first opportunity,’’charge No. 6, given for defendants, might have been objectionable as referring to the jury, the question of what was “reasonable time,” but, with the added words, “and on his first opportunity,” that vice is taken away, and altogether, the charge is free from error.
For the error pointed out, the judgment of the circuit, court is reversed and the cause remanded.
Reversed and remanded.