(dissenting). I. The majority rightly declares that the law question is, What effect should be given tq the fact that defendant did not read what she signed? I differ from its conclusion that this failure is of no consequence.
In Bannister v. McIntire, 112 Iowa 600, at 604, we quote with approval from Bonnot Co. v. Newman Bros., 108 Iowa 158:
“While persons, on the faith of another’s word alone, every day sign contracts without reading them, the law has ever adjudged this such indifference as will preclude a remedy in event of deception.”
And we held, in McCormack v. Molburg, 43 Iowa 561, at 562, that such indifference “is inexcusable neglect, and the defendant must suffer the consequences of his own folly.” We said in Shores-Mueller Co. v. Lonwing, 159 Iowa 95, 100, that there is a duty to read, and that, as a rule, if one who signs is able to read, has opportunity to read, and omits to do so because of the statements of his adversary concerning the contents of the instrument, “his negligence will estop him from claiming that the instrument is not binding.” For this, citation is made of Bannister v. McIntire, 112 Iowa 600; Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547; Gulliher v. Chicago, R. I. & P. R. Co., 59 Iowa 416; and Reid, Murdock & Co. v. Bradley, 105 Iowa 220. We said, in McCormack v. Molburg, 43 Iowa 561, at 563:
“With scarcely an exception, where the rule has apparently been recognized different from that herein established, some such exception [inability to read the English language or to read] will be found to exist, or some artifice used to obtain the signature of the party, or to prevent him from reading the contract. ’ ’
It may be said that the rule which estops because of reliance on the statements of one opposed in interest is in conflict with other well-settled rules. This, too, is disposed of in Shores-Mueller Co. v. Lonning, 159 Iowa 95, at 100, by the declaration that, so far as a plea for relief on account of having signed on the representation of an adversary in interest is concerned, there is no room to apply the rule “that it is no defense for one guilty of a fraud to say that the other party was negligent in believing him.” As to this, the Shores case says:
*269“We have so long adhered to the doctrine just stated [that such representations may not be relied on] that we are not justified in departing from it now.”
There must be a prevention. It is not enough that one sign because the other fraudulently represented that the thing signed was something other than it in fact was. Such representation constitutes fraud. But, where the fraud is effective solely because one does not read when he might, it cannot be an avoidance that one did not read. The two things are distinct. The false representation as-to contents is the fraudulent act. The failure to read is an avoidance, though the act be fraudulent. In other words, fraud is not actionable, if it could not have been injurious were it not for the neglect of the defrauded party. See McCormack v. Molburg, 43 Iowa 561, at 562; Bannister v. McIntire, 112 Iowa 600, 604. When it comes to avoidance of fraud if it be assumed to exist, it cannot, of course, avail to say that a fraud was committed. Whenever the law makes the omitting to do a stated thing an avoidance of fraud, no matter how black, of course it remains such avoidance, no matter how black the fraud. A rule that is available only if fraud be found, and which is operative though fraud be found, would not be a rule at all, if it were inapplicable because fraud was found. See Spitler v. Perry Town Lot & Imp. Co., 189 Iowa 709.
It follows of necessity that the failure to read is not avoided by showing that a representation as to the contents of the paper was relied on. Such representation and reliance work the fraud, but do not excuse the negligence in failing to do what would have made such fraud harmless. This is especially so where the parties have conflicting interests. It militates strongly against the one who claims fraud that he asserts he was misled by the representations of one who had an adverse interest. This thought is clearly put in Green v. Wilkie, 98 Iowa 74, at 80, by pointing out that the representer in that case was naturally more readily relied on because apparently he had absolutely no interest in the business to be done. The same thought is emphasized in Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547, at 550, where it is pointed out that the claim that a paper which proved to be a release, when it was represented to be merely a voucher for back pay, was signed on representation by *270the agent of the railroad. To like effect is Och v. Missouri, K. & T. R. Co., 130 Mo. 27 (31 S. W. 962). And so of Bannister v. McIntire, 112 Iowa 600, 601, where a sheriff signed a written admission of liability which would take a claim out of the statute of limitations, and did so without reading it, and upon the representation of attorneys other than his own that the purpose of the paper was to protect their client against assertions by a railroad company. And in Shores-Mueller Co. v. Lonning, 159 Iowa 95, 100, some emphasis is laid on the fact that the reliance was on the statement of an adversary. And see McCormack v. Molburg, 43 Iowa 561, at 562. Here,’ though the parties may have been good friends, and plaintiff had at one time had a room in defendant’s apartment, there was no confidential relation, and their interests were adverse.
As said in Crim v. Crim, 162 Mo. 544 (63 S. W. 491), to permit a party, when sued on a written contract which he admits he signed, to deny that it expressed the agreement he made, merely because he did not read the paper he signed, and, therefore, did not know its stipulations, would absolutely destroy the value of all contracts and negotiable instruments. We held, in McCormack’s case, 43 Iowa 561, at 562, “that such indifference is inexcusable neglect, and the defendant must suffer the consequences of his own folly.” In Reid, Murdock & Co. v. Bradley, 105 Iowa 220, at 225, we say this language is peculiarly applicable, and that the effect of any other rule “would be to render written contracts of but little practical value over those existing in parol only.”
II. It is a self-evident proposition that any avoidance which is held to be insufficient to make an issue for a jury cannot be sustained on review de novo. And it seems to me we have time and again held that a stronger showing than this defendant has made will not even sustain a verdict under the rules which govern appellate review of verdicts. The following are some of them:
In Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547, it was testified, in substance, that, when certain writings were signed, they were not read over, but that the agent of the adversary who procured this signature stated to the maker that the paper he was signing was a voucher for his back pay; that the. *271signing was done without knowledge of the contents of what was signed; and that, thereafter, the papers signed proved to be a release. We held that, since plaintiff had the capacity to read the release signed by him, had opportunity to do so, and no fraud preventing him from reading was practiced, that then, though he chose to rely upon what the other said about it, the signer was estopped by his own negligence from claiming that the paper was not binding upon him, according to its terms. In Bannister v. McIntire, 112 Iowa 600, a sheriff who had money on deposit with him as damages for a railroad right of way, signed, without reading, a written admission of liability and a promise to pay, which took the claim out of the statute of limitations, the attorneys of the promisee saying to him the signing-was merely to protect their client against the railroad. In McCormack v. Molburg, 43 Iowa 561, the claim was that the plaintiffs “falsely and fraudulently pretended to reduce said verbal contract [one asserted to have been previously orally made] to writing, as they falsely assured this defendant. The plaintiffs at the time knew the same were false, and then inducéd said defendant to sign the same, * * * defendant believing, at the time of signing the same, that it fairly expressed and contained the said above-described verbal contract.” We held that this, if proven, would not make a ease for the jury, because, for one thing, there is no statement that the signer “was unacquainted with the English language, or that he could not read; ’ ’ and that, “in fact, no excuse whatever is given, except that he signed the contract, relying on the representation of plaintiffs as to its contents;” and that this “is inexcusable neglect, and the defendant must suffer the consequences of his own folly.” In Jenkins v. Clyde Coal Co., 82 Iowa 618, at 621, it is held, on the authority of McKinney v. Herrick, 66 Iowa 414, and McCormack v. Molburg, 43 Iowa 561, that where, though the eyesight of the plaintiff was not good, it clearly appears he could have read the instrument, had he desired to do so, before he signed, then he cannot escape its provisions, although he testified he was misled by the statements of the manager of the company that the writing corresponded with an earlier one made in parol, and he was made to believe that the instrument was a mere receipt for $500 paid; and that he signed a surrender of *272lease without an intention of such surrender. And we held that a letter tending to show the earlier agreement aforesaid should have been excluded from the consideration of the jury: this, though there was plea that the representations aforesaid were false, and that he was induced to sign though the other party knew the same to be false, the representation being that the contract signed, “expressed and contained the said above-described verbal contract.” In Och v. Missouri, K. & T. R. Co., 130 Mo. 27 (31 S. W. 962, at 966), the agent of the other party falsely represented that certain erasures which he was making made the paper signed conform to what had been the understanding of the parties. In Reid, Murdock & Co. v. Bradley, 105 Iowa 220, 221, 223, the other party directed the signer where to make erasure of clauses, and represented that, when these erasures were made, it would strike out certain matters covering antecedent debts, when, in truth, it struck out but one of these matters. We said:
“ * * * after having erased the words to which we have referred. The credit man’s attention was called to the erasure, and there is no doubt in our minds that Bradley thought he had so changed the contract as that it applied to future indebtedness only. It is likely that the credit man directed Bradley to the place where the erasures should be made, but of this there is some doubt. This much does appear, however; that Bradley was able to read and write, and had full opportunity before signing to read the document. * * * Appellant says that the mistake in the signing of the contract was due to oversight in not reading it over more closely, and gives as his only excuse for not doing so: First, the statement of the credit man; second, that ‘he [the credit man] kept nagging the life out of me, and it was dark in the room, and he pointed to the paper, and said, “Scratch out that line there, being as to past purchases, ’ ’ and I scratched it out and signed it. ’ ”
We held there was no case to submit to a jury.
2-a
Typical cases wherein it was held that the issues should go to the jury are as persuasive against sustaining the avoidance made in this case as are the cases wherein it was held that there *273was not enough to send the question of excuse or avoidance to the jury. As pointed out in Gulliher v. Chicago, R. I. & P. R. Co., 59 Iowa 416, at 422, the case of Hopkins v. Hawkeye Ins. Co., 57 Iowa 203, was held to be for a jury because the signer, who relied on the agent of the other to read the paper to him, was unable to read writing, on account of having lost his spectacles, and testified that the instrument was read to him falsely, and with intent to defraud him. In Sims v. Bice, 67 Ill. 88, signer could not read writing readily. In Trambly v. Ricard, 130 Mass. 259, the signer was unable to read or write, and affixed his signature by mark. In Shores-Mueller Co. v. Lonning, 159 Iowa 95, 100, 101, we sustained submission to the jury because the jury was justified in finding that the signers could not read or write the English language, and that an instrument in fact operating to create a suretyship obligation was represented to be simply a certificate as to the reputation or character of Lonning, the signer having expressly stated that, if it was a security, he would not sign. It^is. said, among other things, that such cases should go to the jfiry if the instrument is fraudulently read, or if, by trick or fraud, a different paper is substituted, and the signer cannot read himself, and is otherwise without laches. We held, in Dashiel v. Harshman, 113 Iowa 283, that, where plaintiff, a woman advanced in years, had defective eyesight, executed a quitclaim deed for a nominal consideration, relying on the representations of the grantee that the deed would not affect her land or title thereto in any manner, she being unacquainted with the description of her land, because her patent had been destroyed by fire, years ago, and mough she objected to signing the deed until she had shown it to her attorney, to see if it was all right, yet defendant induced her to sign then and there, by making this false representation, it was for the jury whether she was not negligent in not ascertaining the contents of the deed. True, in the isolated case of Tait v. Locke, 130 Mo. App. 273 (109 S. W. 105), there is the following broad language:
“We know of no ease in which it was ruled that the actual misreading of a paper purporting to contain a contract, thereby inducing the signing of it, was not a fraud which the signer *274might set up in defense, even though he could have read the paper himself. Such a betrayal of confidence is revolting, and so infrequent that it is not likely to be anticipated. ’ ’
If this be, indeed, a contradiction of well-settled rules to which reference has been made, it would seem to stand alone, and would be in conflict with other cases in the same jurisdiction.
III. It is to be doubted whether the majority means to dissent from the foregoing law propositions. The remaining inquiry, therefore, is whether the evidence can rightly be held to excuse defendant. At the outset, it is to be said that defendant is not entitled to have the evidence weighed, beyond asceri taining whether she has sustained her plea of avoidance. In other words, if that plea asserts no preventing trick or device, and limits itself to charging that a false representation was made as to what she was signing, then it is settled, as matter of law, without resort to the evidence, that failure to read has not been excused. What is her plea? She answers that, in response to said letter, plaintiff brought to defendant, at her store, what she supposed and believed to be a copy of plaintiff’s proposal, but which was the contract set out in plaintiff’s petition; that the plaintiff orally represented that said contract was identical, and the duplicate copy of plaintiff’s written proposal aforesaid; that the defendant relied upon said representation, and signed the said contract; and that the defendant never knowingly or intentionally entered into any other or different contract than the one contained in the written proposal of plaintiff, agreeing to do the whole of the said work and to furnish all of the materials for the sum of $628. A similar answer was held insufficient in McKinney v. Herrick, 66 Iowa 414, at 416.
3-a
Passing that, upon the majority opinion itself the testimony is in equipoise. It is therein stated that there are some contra^ dictions and inconsistencies in the testimony of both parties; that there are other circumstances for and against each, and more or less contradictoriness and inconsistency in the testimony of both; further, that, while the memory of the plaintiff is at *275fault at some points, lie is corroborated to some extent by bis stenographer; and that, on the other hand, defendant is corroborated, to some extent, circumstantially. Finally, it is stated that, on all vital points, the plaintiff makes denial.
Now, there is a presumption that the instrument signed was read, and that the signer knew its contents. Smyth v. Munroe, 84 N. Y. 354. The burden rests upon the signer to show that the execution was obtained by fraud and deceit. Och v. Missouri, K & T. R. Co., 130 Mo. 27 (31 S. W. 962, at 966). And we held, in Chirurg v. Ames, 138 Iowa 697, at-706, that this burden is discharged only if the one who asserts fraud makes out her case “by clear and satisfactory evidence.” In dealing with this point, appellee says, while it is true that Mr. Christensen and his stenographer to some extent “contradict this,” it was a question of fact for the court to decide whether or not the contentions of the plaintiff or defendant were correct, and, if the defendant’s contentions were correct, then “plainly Mr. Christensen had no right to recover anything from her, as he had been paid in full.” This ignores utterly that appellant is entitled to review de novo.
IV. Defendant testifies that plaintiff, on coming, said:
‘ ‘ ‘ Here is your letter, and I brought over these copies; you wanted a duplicate copy of your contract, and here it is. * * * Here are the contracts, and here is your duplicate. * * * Better sig’n it.’ * * * And he drew the other one out of his pocket, and said, ‘As long as you have lost yours, we will have both of them alike. Sign this one, and I will have one just like it;’ ” that, when she signed, it was represented that she was signing something which was exactly in accord with the original written proposals and contract, and that she relied on the representations of plaintiff to the effect that the writing brought to her, and which she signed, was an exact duplicate of the earlier writing entered into between the parties; that plaintiff had the papers doubled up in such way that she could not and did not see the parts which differ from the original written proposal. She testifies that she never dreamed of getting a new contract, and that all she wanted “was a copy of the old one to put in my day book;” and never knowingly entered into any contract other than the one contained in the original written proposal.
*276Eliminate the “doubling” of the paper, the claim that appellant had been ailing and was sick at the time, the fact that defendant is nearly 70, and certain asserted distractions which will presently be noted, and the proof just sustains the plea,— is nothing but evidence that plaintiff induced defendant to sign by falsely representing that she was signing something that worked no unauthorized, change in existing obligations. It will hardly be claimed that this much will excuse the failure to read. If there was any “prevention,” we must find it in other evidence. Is there any?
There was no prevention at first, because defendant testifies that she started to read the paper; that she took it and commenced to read it, but did not finish it. Manifestly, then, if there was any prevention, it must have occurred after she had been permitted to read part way. No matter what the plaintiff said in the first instance, no matter how much doubling up of the paper he did, that neither induced reliance nor prevented reading. Neither does it matter that she had her hat on and was just ready to go when defendant came, made his alleged representations, and told her to sign; nor that she was “ill.” For, as has just been seen, despite the representations, and despite the alleged folding up of the papers, and being ill, and having the hat on, defendant did start to read. If, then, there be prevention that destroys the avoidance attempted by the plaintiff, it must be by something done by or chargeable to him which induced the defendant to abandon further reading. What, then, is there left for the claim of prevention ? What done by plaintiff “prevented reading the contract,” to use the words of the majority opinion? What did plaintiff do to stop further reading? As said, everything so far commented on did not stop reading, because defendant started to read. I repeat, What else is there of any act on part of the plaintiff that even tended to stop further reading ? Not a word can be found to the effect that plaintiff did anything, although it may be granted, arguendo, that things other than any act on the part of plaintiff may have had a tendency to explain why the reading was, for the time being, stopped. After defendant started reading, three or four men and a man working in the basement were calling defendant “in three or four directions;” and then the phone *277called her to come to her sister, who, she was advised, had fallen into a faint, and was very sick. Assume this can be imputed to plaintiff. But we have the further testimony of the defendant that she finally did return from the sister, “and when I went back, I was going to finish reading the contract, and he doubles it up so as to hide the clause he had put in. The phone rang again, and I went to it, and they told me to hurry over. ’ ’ Leave out the one statement that, when she returned, this doubling over was repeated, and it is made clear to a demonstration that nothing in the world interfered with reading what she signed before that. She had not signed when she went away the first time, in response to the telephone call. She had not signed when the three or four men were calling her in three or four different directions. The statement that the doubling over process was repeated when she returned, is denied, and is utterly against reason. But assume it to be true. She had started to read after the first doubling; she could see, according to her own story, that something was being doubled up in such way as made it difficult for her to see what she was signing. She was back from her sister; the three or four men had stopped calling. What was there, either in her own infirmity or in anything to which reference has been made, that prevented her from reading before she finally appended her signature? When all is said, there must be an infirmity or device that works prevention. Wallace v. Chicago, St. P., M. & O. R. Co., 67 Iowa 547, at 550. What was there in anything the evidence shows that prevented defendant from finishing her reading, or having her son, who was present, read this paper? He does not seem to have been ill, or to have been distracted by anything.
The case falls fairly within the rule of. the cases I have cited, where the agent of the other party, induced signing what, either by erasure or otherwise, changed existing obligation, and in which it was held the contract could not be avoided because such agent falsely represented the actual contents of what was signed. In the Beid case, 105 Iowa 220, 223, which has already had full comment, a quite similar, but stronger ease could not even reach a jury — much less be sustainable de novo.
One may well wonder what the profession will- think, the *278next time we shall, without reference to this majority opinion, once more announce that what is here held to be an excuse is not an excuse.