I think that special grounds 1, 2, 6, and 8 of the motion for new trial are meritorious, should have been sustained, and a new trial granted.
Special grounds 1 and 2. In my opinion the evidence did not authorize a finding that a fraud was perpetrated in procuring the plaintiff to sign the release so far as misrepresenting the contents or in so far as preventing her from reading or understanding its contents are concerned. As to the first question see Southern Auto Co. v. Fletcher, 66 Ga. App. 168 (17 S.E.2d 294), and cit. As to the second, see Bryan v.Bryan, 139 Ga. 51 (76 S.E. 563).
Special ground 6. I think that it was error to authorize the jury to find that the defendant was guilty of such constructive fraud as to authorize the setting aside of the release. There was no constructive fraud in this case. So far as I can find there is only one instance in which constructive fraud will operate to rescind a contract and that is under the Code, § 37-703, where a party makes an innocent misrepresentation which is false and deceives the opposite party. Newman v. Claflin Co. (supra). Where the agent denies making the apparent threat there could hardly be a finding that he made it in good faith. *Page 727
Special ground 8. I think the court erred in failing to give the following request: "I charge you that even if a person can not read the instrument it is as much his duty to procure some reliable person to read and explain it to him, before he signs it, as it would be to read it before he signed it, if he were able to do so, and his failure to obtain a reading and explanation of it is such gross negligence as will stop him from avoiding it on the ground that he was ignorant of its contents." I do not think that the ruling in A. W. P. R. Co. v. McCord (supra), is applicable to the facts of this case. In that case the person signing the release was so sick that he could not write unaided and the defendant's agent held the pencil while the injured person signed the release. The court held that under the facts of that case, the inference was authorized that the execution of the paper was caused by the fraud of the agent inducing the party signing the paper to do so in the belief that he was not signing a paper which would relieve the railroad from liability, or in other words, to find that the railroad misrepresented the contents of the instrument. The court further held that there was an emergency which excused the injured party from reading the instrument he signed. It seems to me that under the evidence in this case the defendant could have been guilty of but one kind of fraud by which the release might have been invalidated, and that was duress. This principle was not charged and is not mentioned by counsel for either side, but regardless of that, the points made by the defendant show reversible error. If the plaintiff was induced to sign the release by any kind of fraud it was not because she was deceived as to the contents of the release, or was prevented from reading it, but because she was scared into signing it, on account of her weakness, by being deceived as to the effect of not signing it. I do not think the alleged representation in this case was one of fact so as to bring the case within the rule that a legal fraud will sustain a rescission of a contract. The conduct of the agent was duress or no fraud at all. In my judgment one can not act in good faith and be guilty of duress. I think the element of intent is essential, and such an element constitutes actual and not legal fraud. *Page 728