
    Alfred Shrimpton & Sons (Limited), Respondent, v. Simon Eschwege, Appellant.
    
      Goods sold—negligence of a purchaser in failing to correct an order sent to him for examination.
    
    In an action brought to recover for one great gross papers of pins, equivalent to twelve gross, put up in a particular manner and having printed upon them the defendant’s name and certain special advertising matter, the defendant claimed that he had ordered but one gross. But it appeared that after he gave the order for the pins he received a letter containing an agreement for one great gross and the matter which was to be printed, from the plaintiff, who asked him to “ check this all over carefully,” make any desired changes, and “if O. K.” to sign and return it. At the bottom of this letter the defendant signed the following statement, “We have checked this all over carefully and find it to be correct in every particular.”
    
      Held, that the plaintiff was entitled to recover;
    That the defendant was bound to read the order before he approved of it.
    O’Brien and Patterson, JJ., dissented.
    Appeal by the defendant, Simon Eschwege, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of March, 1896, upon the verdict of a jury rendered by direction of the court after a trial at a Trial Term of the Supreme Court held in and for the county of New York.
    
      Edward W. S. Johnston, for the appellant.
    
      George C. Coffin, for the respondent.
   Van Brunt, P. J.:

This action was brought to recover for goods, wares and merchandise consisting of one great gross papers of pins with advertisements attached. The defendant for answer denied the sale and delivery of the goods, and alleged that the order for one great gross papers of pins was obtained by the agent of the plaintiffs through fraud or fraudulent concealment and misrepresentation.

The question involved in the trial of the case was as to whether the defendant had ordered one gross papers of pins or one great gross papers of pins. It appears that an order for one great gross papers of pins was signed by the defendant and given to the agent of the plaintiff on or about the 14th of February, 1893; that he turned in the order to the plaintiff, who upon the seventeenth of February mailed to the defendant a letter in which they acknowledged the receipt of his order given to their salesman for one great gross papers of pins to be put up in the manner described in said letter as soon as they could prepare the goods, with the defendant’s name and special advertising matter printed thereon ; and then follows the printed matter which was to go on the papers in which the pins were to be put up. The letter concludes : Please check this all over carefully, making any changes or corrections you desire, and if O. K. please sign and return to us by first mail in the enclosed stamped envelope, and we will proceed with the order.” At the bottom of this letter the defendant signed the following statement: “We have checked this all over carefully, and find it to be correct in every particular. Date Feb. 20, 1893.” This was mailed to the plaintiff, who thereupon proceeded to complete the goods necessary for the order, and shipped the same, after they had been prepared for delivery, to the defendant, who refused to receive the same.

The evidence upon the part of the agent of the plaintiff was that there was a conversation between himself and the defendant as to whether one gross of pins or one great gross should be ordered. The defendant objected at first to one great gross, but when he was told that the plaintiff would not print his advertising matter upon a smaller order he finally consented, and gave the order for one great gross.

The defendant insisted that the conversation was as to one gross or half a gross — that he only wanted to order half a gross — and that upon being told that the plaintiff would not fill an order except for a gross, he presumed he was signing an order for a gross. A saleswoman of the defendant of the name of Mattie Goose corroborated him to a slight extent; she did not hear the whole of the conversation, but testified that there was a conversation between the defendant and the plaintiff’s salesman as to one gross or a half a gross. She did not see the order signed or witness the circumstances under which it was done.

Upon the conclusion of the evidence the court directed a verdict for the plaintiff, and in this, I think, there was no error. It appeal’s from the evidence that, after receipt of the order by the plaintiff, they sent to the defendant a statement of what the order was before they proceeded to complete the manufacture of the goods, which goods were to be put up in a special way in which they could be used by no person except the defendant. The defendant replied that the order was correct in every particular, and the plaintiff thereupon went on and manufactured the goods. It seems to. me that it is too late now for the defendant to say that he did not read the order. Before he approved of it and stated it to be correct in every particular he was bound to read it; and if he did not the plaintiff cannot be called upon to sustain the loss occasioned by his negligence. Where the defendant represents that he has seen, and the party acts upon the faith of his having seen, he cannot be heard after-wards to say, although I said I saw I did not.” It would certainly put a stop to all business transactions if, after the delivery of the ratification over a purchaser’s own signature of an order to which his attention is especially directed, a seller could not rely upon the representations of the purchaser that the order was correct in every particular.

The judgment should be affirmed, with costs.

Ingraham, J., concurred; Williams, J., concurred in result; O’Brien and Patterson, JJ., dissented.

O’Brien, J. (dissenting):

This action was brought to recover the agreed price of one “ great gross papers of pins ” alleged to have been sold and delivered to the defendant. The evidence shows that the defendant signed an order for the pins, which was on a printed form, and that all of it, with the exception of the name of the agent and the date and the word one ” '—before the words “ great gross ”—• and the advertisement of the defendant, was in print. The president of the company, on receiving an order from the agent, wrote to the defendant stating its receipt, sending him a copy of the defendant’s advertisement to be printed on the goods, and requesting him to check it off, make any changes or corrections he desired, and, if O. K., to sign and return. This order the defendant signed over a statement that he had checked it all off carefully and found it to be correct in every particular.

The defense was that the defendant had been fraudulently induced to sign the order, his testimony showing that the agent offered him pins and urged him to purchase a gross, and not a great gross, which was twelve times as much, which latter is the amount the plaintiff claims to have sold. The defendant testified that he told the agent he could not use even a gross and wanted a half gross, but that the agent insisting that a gross was the smallest quantity that could be ordered, he finally agreed to purchase one gross, and that nothing was said during the entire conversation about one great gross of pins; that the agent placed the order before him and pointed to the reading matter; that the defendant did not read the paper through, but wrote his name and address, and that the agent wrote the word “ one ” before the printed words “great gross ” on-the order. A saleswoman in the defendant’s employ claimed to have overheard the conversation and testified that it related to a gross of pins and not to a great gross. Upon the cross-examination of the president of the plaintiff, and by other witnesses, it was made to appear that similar mistakes had occurred between the plaintiff and other customers, which had been the subject of several law suits.

At the close of the case, the learned trial judge directed a verdict for the plaintiff, it appearing that the paper was signed by an intelligent man who could read and write, without any inducement on the part of the plaintiff or its salesman, or any representation that was misleading; that fraud could not be predicated upon a transaction like that disclosed by the evidence; that, after the order was given, the defendant ratified the transaction by answering the communication sent to him by plaintiff’s president, which contained a copy of the order for one great gross, and by signing the statement “We have checked this all over carefully and find it to he correct in every particular; ” and that it was only after that that the plaintiff went ahead and filled the order and shipped the goods. Commenting on these facts, the learned trial judge said: “ Under those circumstances, it seems to me that there is no room for inferring that there was any overreaching of the defendant, nor any attempt to deceive him in any respect. On the contrary, there was an effort to notify him expressly of what he had agreed to, and it was for him then, in the exercise of ordinary prudence, to have protected himself if he had been misunderstood, and have prevented the plaintiff from going on to fill the order, the plaintiff having received the order through one of their salesmen and taking the precaution to repeat it back to the defendant. There were no misrepresentations to induce him to acknowledge the correctness of the order as stated in the second writing.”

The appellant contends that this direction was wrong, and that, upon the evidence, it was a question for the jury as to whether or not the defendant was overreached. There can be no question that the plaintiff’s case was very strongly intrenched by the second paper which the defendant signed and returned to the plaintiff. Were it not for this, it would have been clearly a question for the jury; and the point remaining for our consideration is: Did the signing of the second paper make the evidence so preponderating in plaintiff’s favor that it was proper to direct a verdict ? Or, put it in another form, had the question been submitted to the jury, had they decided in defendant’s favor, would the verdict have been set aside as against the weight of evidence ?

This question was considered in the Michigan courts in an action brought by this plaintiff against one Rosenbaum (63 N. W. Rep. 1011). There as here the defendant received from the plaintiff a letter acknowledging receipt of the order for three great gross, and with proof of the defendant’s advertisement, and asking the defendant to check it all off, and if O. K. to sign and return the letter. The defendant placed his O. K. after the advertisement, signed the letter and returned it. The defendant testified that he intended that his order should be only for three gross, and that, in signing the letter, he paid no attention to the quantity stated therein, as he thought his approval to the advertisement only was asked. The court says: It is urged that this case is distinguishable from the Netzorg case (Shrimpton v. Netzorg, 62 N. W. Rep. 343) in that here a confirmatory order was given. It was entirely proper to permit the explanation of the circumstances under which this order was obtained. Both papers related to the same transaction. If the first was obtained through fraud, defendants would be bound to repudiate it when discovered and not before. The transaction was tainted by the fraud in the procurement of the original order, and the procurement of the' confirmatory letter did not purge the transaction of the fraud. The testimony tending to show similar transactions with others was admissible as bearing upon the question of intent.” •

As will be seen, upon evidence like that adduced in this case, the defendant there obtained a judgment which was affirmed upon appeal. We agree with the reasoning in that case. The confirmatory letter was part of the same transaction. If by fraudulent means the defendant was induced to enter into the contract, the fact that he was afforded means of discovering the fraud and did not discover it, cannot take away his right to rescind when he did discover it. The most that can be predicated of his failure to note that the confirmatory letter spoke of a great gross,” is that it was a careless and negligent way of conducting business; and this would be a circumstance for the consideration of the jury militating against the probability of the defense. Still, if the original transaction was tainted with fraud, and the confirmatory letter was but a step in the transaction, there is nothing, barring an estoppel, which should legally prevent a person, even though negligent and careless, from invoking the rule that he is protected against fraudulent acts upon the part of the person with whom he is dealing. We do not mean to imply that the testimony upon the question of fraud is either conclusive or satisfactory, our province being merely to determine whether there was sufficient evidence to go to the jury upon the question.

That there was no estoppel we think is clear. An estoppel could only be based upon the fact that the company, after the confirmatory letter, went on and manufactured, relying on the acts of the defendant. It has been held, however, that in order to create an estoppel in pais it must appear that the party asserting the estoppel has been induced by the acts or declarations of the party sought to be estopped to believe the existence of the facts to which the estoppel relates and that he has in good faith acted upon such belief.” {Lawrence v. Brown, 5 N. Y. 394. See, also, Bridger v. Goldsmith, 143 id. 424.) “ The doctrine of estoppel in pais is founded upon equitable principles and is applied to prevent fraud and injustice. It would be a very singular and extraordinary application of the doctrine to apply it for the purpose of preventing a party from alleging an innocent mistake. I cannot find that a party has ever been estopped by a mistake.” {Lawrence v. American Nat. Bank, 54 N. Y. 436.) “ The doctrine of estoppel is applied to promote justice and fair dealing, never to aid a fraudulent purpose.” {Royce v. Watrous, 73 N. Y. 597.) If the defendant’s story is to be credited, that he was induced by the fraudulent conduct of the plaintiff’s agent to sign the contract, the confirmatory letter, as said, being part of the same transaction, does not present features which would prevent the defendant from alleging the fraud and proving it if he could.

We think, therefore, that the direction of a verdict was erroneous and that the judgment should he reversed and a new trial ordered, with costs to the appellant to abide the event.

Patterson, J., concurred.

Judgment affirmed, with costs.  