
    De Cernea v. Cornell.
    (New York Common Pleas
    General Term,
    April, 1893.)
    In an action to recover for the sellers’ refusal to perform a contract in writing for the sale and delivery of paper, the contract was admitted and the defense set up was that the contract was drawn in reference to a certain trade custom, and that plaintiff fraudulently procured defendants’ agent to sign the contract without reading it, knowing that it did not contain the terms previously agreed upon, and with the intent to deceive the agent. Defendants offered evidence as to the trade custom, and the court excluded it on the ground that it varied the terms of the contract. Held, that as it was apparent that it was offered to impeach the contract for fraud, it was admissible and its rejection error.
    
      Held, further, that it was error to direct a verdict for plaintiff against defendants’ objection and against their request that the question of fraud be submitted to the jury as the evidence would have justified a finding that the execution of the contract by defendants’ agent was the result of plaintiff’s trick and deception.
    Appeal from a judgment of the General Term of the City Court of blew York, which affirmed a judgment for plaintiff entered upon a verdict directed by the trial court.
    Action by vendee to recover damages for the vendors’ refusal to perform a contract in writing for the sale and delivery of paper, the alleged damages being the difference between the agreed price and the amount paid by the vendee in open market for paper of like quantity and quality.
    
      Ed/ward Wells, Jr., for plaintiff (respondent).
    
      Alfred G. Reeves (George X). Beattys, of counsel), for defendants (appellants).
   Bisohoff, J.

Plaintiff sought to recover damages alleged to have accrued to him from defendants’ breach of a contract in writing whereby they bound themselves to sell and deliver to him 1,000 reams of baker’s light straw paper, twenty by thirty, sixteen pounds to 400 sheets, at nineteen cents per ream. The defense was that by general usage in the paper trade a ream fifteen by twenty is accepted as of standard size, and which size serves as the common multiple for calculating the cost of a ream of different size, and that in quoting the cost of paper, for the purposes of purchase and sale, reference is invariably had to this common multiple ; that with knowledge of the fact of this usage and of the further fact that in-offering to supply plaintiff with the paper described in the contract at nineteen cents per ream defendants’ agent referred to the cost of a ream of standard size, plaintiff in reducing the terms of the oral agreement to writing, fraudulently stated the cost per ream of paper of the size therein described to be nineteen cents, and that the defendants’ agent, without reading the proposed contract, executed it, believing it to state the terms of the oral agreement correctly.

Unquestionably the facts pleaded as a defense in this action, if sufficiently established on the trial, would have afforded ample ground for rescission of the contract in equity in an action for that purpose, and would have constituted a good defense to an action in equity brought to enforce a contract which was entered into under like circumstances. The rule which refuses relief for neglect or omission to read a contract before it is executed, to a party thereto, though it appears that he executed the contract under a mistake of fact, or misapprehension respecting its terms, applies where the other of the contracting parties intended to make the contract as it Was executed, and was himself free from any fault by which the party seeking relief was misled or deceived, but does not -extend to the case where the party insisting upon the contract ■as it was executed cannot be injured by the granting of relief to the other, or where the denial of relief to the party misled will enable the other to retain an unconscionable advantage which was secured by the perpetration of a fraud, or the practice of an imposition or deceit at the time of the execution of the contract. Paisley v. Casey, 41 N. Y. St. Repr. 339 ; Fulton v. Metropolitan Life Ins. Co., 1 Misc. Rep. 478. "True, the court below, being without the power of a court of equity, could not award defendants affirmative equitable relief, but by express provision of the Code of Civil Procedure, section 507, defendants were enabled to avail themselves of the same defenses which they might have interposed had this action been brought in a court of equitable jurisdiction. Evidence of the fact of the usage above mentioned was, therefore, competent and material to the defense and its exclusion by the trial court under plaintiff’s objection error.

Again, it was error for the trial court to direct a verdict for plaintiff against defendants’ objection, and against the request of their counsel that the question of fraud be submitted to the j™y-

It appeared from plaintiff’s own testimony that he had been engaged in the paper trade for a number of years immediately preceding the execution of the contract in question, and this-fact, presumptively at least, established his knowledge of any well-known and prevalent custom or usage in that particular trade. Harris v. Tumbridge, 83 N. Y. 92; Dickinson v. Poughkeepsie, 75 id. 65; Walls v. Bailey, 49 id. 464; 2 Rice Ev. 906. His denial of any such knowledge was that of a party in interest, and so not conclusive. Elwood v. W. U. Tel. Co., 45 N. Y. 549; Kavanagh v. Wilson, 70 id. 179; Gildersleeve v. Landon, 73 id. 610; Brooklyn, etc., R. Co. v. Strong, 75 id. 591; Koehler v. Adler, 78 id. 291; Wohlfahrt v. Beckert, 92 id. 497; Munoz v. Wilson, 111 id. 300; Canajoharie N. Bank v. Diefendorf, 123 id. 191. He admitted that at the time of the execution of the contract he knew the actual cost at ,the mill for paper of the size therein described to be over nineteen cents per ream, and believed it was over thirty cents, while Arnold (defendants’ agent) testified that at no time during the interview with plaintiff, which culminated in the execution of the contract, was the size twenty by thirty mentioned; that plaintiff himself drafted tlié proposed contract in an adjoining room, and that he (the witness) indorsed defendants’ acceptance thereon without reading it, under pressure of plaintiff’s extreme urgency for celerity in the shipment of the paper. Arnold’s testimony furthermore developed the fact of the usage contended for. These facts, beyond peradventure of doubt, would have justified a finding that the execution of the contract by defendants’ agent was-the result of trick and deception jtraeticed by plaintiff.

The court below seems to have disposed of the case under a mistaken view that evidence of the usage was sought to be introduced on defendants’ behalf to vary the terms of the contract, and so excluded it on application of the familiar rule which precludes the impairment of the legal effect of a written - instrument by parol evidence, but it is apparent that the office of the proffered evidence was to impeach the contract for fraud, and no question can arise respecting its admissibility for that purpose. Browne’s Parol Ev. 67.

The judgment of the general and trial terms of the court below should he reversed and a new trial had, with the costs of this appeal to the appellants, to abide the event.

Bischoff and Pryor, JJ., concur.

Judgment reversed, new trial ordered.  