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MCWHORTER, LTD. et al. v. IRVIN et al.
Legal malpractice. Fulton Superior Court. Before Judge Weltner.
This is an appeal from the denial of a motion for a judgment of liability against the defendant Irvin, an attorney charged with malpractice in that he prepared a deed from Sylvan Property Management, Inc., of which one Haley was president, to McWhorter, Ltd., a limited partnership in which Haley was the general partner, which deed contained language contrary to his instructions. Irvin had been used by Haley for about 14 years as his real property attorney, and had conducted over 130 closings of property sales for him and the various firms managed by him. His standing instructions were to avoid all language in deeds indicating that the purchaser was assuming any loans outstanding on the subject property. In the instance in question the language ("a loan deed . . . which grantee herein assumes and agrees to pay ) was inserted in the deed, presumably by a secretary in Irvin's office, and not noticed by either the defendant or Haley, who signed the deed. As a result the plaintiff McWhorter, Ltd. was eventually forced to pay off the defaulted loan. It then sued Irvin for malpractice. From a decision in favor of the defendant plaintiff appeals.
DEEN, Chief Judge.
1. The defendant has candidly admitted that the assumption language in the deed was a mistake on his part resulting from his failure to check the deed before sending it to Haley for execution. He does not deny that in a lengthy series of real estate closings taking place over a period of years Haley instructed him, and he followed the practice of avoiding any language which would result in the purchaser assuming any loan outstanding against the property. This being so, the trial court properly concluded that such action was a breach of the duty on the part of an attorney to follow his client's instructions, that it was not consistent with the required standard of care, that Haley was entitled to rely on the competence of his attorney in preparing these deeds and was therefore not contributorily negligent, and that there was an implied representation on Irvin's part in delivering the deed that it was prepared according to instructions. These findings are not seriously attacked and are here approved.
2. The trial court further stated that the judgment in favor of the defendant on the liability issue was based squarely on Berman v. Rubin, 138 Ga. App. 849 (227 SE2d 802) (1976) which holds that one who signs a contract without reading it is bound by the contents of the written instrument. This would certainly be true in Haley's case as against any other party to the instrument; it has been held over and over again that one who can read must do so, or suffer the consequences. But while the result may have been proper in the Berman case (the evidence showed that the client there carefully read over the settlement agreement in his divorce case, making changes in some parts and initialing each of the completed pages) the present case deals with a course of conduct followed for over a decade, involving scores and scores of deeds, as to which the defendant forthrightly admits his fault and its consequences to his client.
Bachrodt Realty Corp. v. Walker, 237 Ga. 696 (229 SE2d 455) (1976). This fits well with the language of Lanning v. Sockwell, 137 Ga. App. 479 (224 SE2d 119) (1976) holding that unless there is an equitable exception one is responsible for what he signs. Where the right to rely on the judgment of another is clear, the equities shift. Thus, in Conklin v. Liberty Mutual Ins. Co., 240 Ga. 58, 59 (239 SE2d 381) (1977) the rule was held to apply against an opposite party "with whom there exists no fiduciary or confidential relation." In Cochran v. Murrah, 235 Ga. 304, 305 (219 SE2d 421) (1975) the court, summarizing the exceptions to the rule, stated in part: "The rule in this state is that where one who can read signs a contract without reading it, he is bound by the terms thereof, unless he can show . . . that a fiduciary or confidential relationship existed between the parties upon which he relied in not reading the contract." We find the same language in Mullinax v. Shaw, 143 Ga. App. 657, 659 (239 SE2d 547) (1977); American Sec. Van Lines v. Amoco Oil Co., 133 Ga. App. 368 (210 SE2d 832) (1974); Morrison v. Roberts, 195 Ga. 45 (23 SE2d 164) (1942). The rule has been recognized from the beginning. The case of Wimberly v. Ross, 152 Ga. 258 (109 SE 500) (1940) held that a petition seeking to set aside a deed which the plaintiff had not read set out a cause of action, and that was distinguished in Lewis v. Foy, 189 Ga. 596, 599 (6 SE2d 788) (1940) which followed the general rule on the ground that the action in Wimberly was between sisters, who sustained a confidential relationship, whereas the parties in Lewis had no such right to rely on the statements of the opposite party. This is different from a case where, because of the attorney-client relationship combined with a course of dealing including preparation of over a hundred similar deeds for real estate closings, a jury might well find that the plaintiff had a reasonable expectation that his legal interest would be preserved and his instructions followed, even though he failed to flyspeck all the small print in the deed delivered for his signature by his own attorney.
The trial court erred in holding as a matter of law that the plaintiff's failure to read bars him from recovery.
Judgment reversed. Birdsong and Sognier, JJ., concur.
T. Jackson Bedford, Jr., for appellants.
Friday May 22 00:55 EDT

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