
    Jesse Martindale et al. v. Israel H. Harris.
    1. In an action for the price of goods alleged to have been sold by the-plaintiff to the defendant, and delivered to a third person in aecordancewith the terms of a written instrument signed by the defendant, purporting to be a contract of sale, it is not necessary, in order to defeat the action on the ground of fraud, to allege or prove that the goods-were returned, or offered to be returned upon the discovery of the fraud, where it is shown that the goods were so delivered by the plaintiff' without the authority of the defendant, and that the defendant signed the instrument in ignorance of its contents, on the false representation, of the plaintiff that it was a mere recommendation of the goods described therein.
    2. Such instrument in the hands of an assignee is subject to the same defenses that might be made to it in the hands of the person to whom it was delivered. -
    Error to the Superior Court of Montgomery county.
    This action was brought by the defendant in error, as plaintiff, against the plaintiffs in error, as defendants, to recover of the defendants, in their individual capacity, the sum of three hundred dollars, with interest thereon, from March 2,1867, on the following written instrument, signed by the defendants as members of the board of education of the township named therein :
    “February 28,1867. , "We,the undersigned,members of the hoard of education of Harrison township, in the county of Montgomery, and State of Ohio, do agree to take of M. C. Van Hook, or his agents, ten series of Israel’s-Ancient and Modern Outline Maps, ten copies of the Historical Geography, and twenty-five small keys to each map ; and pay one hundred and twenty-five dollars for the maps and geographies, seventy-five cents for each key; and we also authorize the clerk to issue an order, when delivered to the Union Express agent, Dayton, Montgomery county, on condition that the names of a majority of said board-are obtained to this contract.”
    
      The petition avers: the performance by Yan Hook, of the conditions contained in the instrument, to be performed by him; the issuing to him of an order by the clerk of the board of education, on the treasurer of Harrison township, for three hundred dollars; the sale and delivery, by Yan Hook, for a valuable consideration, of the instrument of writing and order to the plaintiff, who thereby became the legal holder and owner thereof; the presentation, by the plaintiff", of the order to the treasurer of Harrison township for payment; the refusal of the treasurer to pay the same; and the refusal of the defendants to pay the amount ■due on the instrument of writing.
    To this petition the defendants filed an answer as follows :
    
      “ Said defendants for answer to the petition of said plaintiff, aver that their signatures to the agreement set forth in said petition were obtained from said defendants 'by fraud and misrepresentation.
    “ They aver that in February, 1867, said defendants were members of the board of education of Harrison township, Montgomery county, Ohio; that in the spring of that year the term of office of many of the members of said board ■expired; that in said month of February, said M. C. Yan Hook represented to said defendants that he had a recommendation to be handed to the board of education,which would be organized in the spring of that year, and desired ■said defendants to sign the same; that said Yan Hook pretended to read a paper to them; that he read a mere recommendation to the new board of education of Harrison township, to purchase the books, etc., described in said contract.
    “ They aver that said defendants did not read said paper, but trusted to the honesty of said Yan Hook, and believed that he read what was written on said paper; that they had no knowledge of the contents of the said paper, except what they learned from said Yan Hook; that they relied upon the representations of said Yan Hook, and signed said paper, supposing it to contain what said Yan Hook represented, and believing it to be a mere recommendation to said new board of education for the purchase of said books, etc., for their future consideration, and utterly ignorant of -its being a contract for the purchase of the same. They aver that said paper was not read to them, as was written thereon, by said Van Hook, and they aver that said paper from which said Van Hook pretended to read, and which they signed, is the same set forth in said petition of said, plaintiff.
    “ They aver that they supposed they were signing said paper in théir individual character, and at a time when said board of education was not in session or acting' officially, and that when said school board did meet, on full consideration they rejected said supposed recommendation. They aver that from the time said order was issued-they wholly repudiated said agreement, because of the fraud practiced on them. They aver that said plaintiff' had due notice of all the facts and circumstances above recited when he purchased said order and agreement, and that said plaintiff paid for said order and agreement a consideration far less than the amount on the face of said order, more than a year after said order had been drawn by said clerk and rejected by said treasurer.”
    To this answer the plaintiff demurred generally, which, on the hearing, was sustained by the court, and judgment entered for the amount claimed to be due on the instrument set out, with interest.
    The reversal of this judgment is now asked, on the grounds that the court erred in sustaining the demurrer to the defendants’ answer, and in rendering judgment against them.
    
      J. A. Jordan, for plaintiff in error:
    The point I desire the court to look at is this: The amended answer states what I consider a complete defense to the action. Judge Haynes held that, it was necessary to aver that defendants offered to return the maps. I can not see how this could be required of us, inasmuch as the .answer avers that the maps were to be left at the express office, by the terms of the agreement, which defendants aver they never signed with knowledge of its contents. If their signatures were obtained by fraud, and they were ignorant of its contents, then how could they be expected to treat it as a contract needing any rescission on their part ? I think the answer a complete defense. This is the ■only question in the case, unless the Supreme Court, for other reasons, see fit to sustain the court below.
    The plaintiff claims:
    1. That no exceptions were taken to the ruling of court. None necessary. Com. Bank v. Buckingham, 12 Ohio St. 402.
    2. Judgment authorized; no further answer being filed. •Of course we could file no other answer. The error consisted in sustaining demurrer to answer already filed.
    3. That defendants did not exercise due caution. Chitty •on Con. 751. It is no impeachment of defendants’ caution, that they relied on a vendor of maps to read the paper and ■did not read it themselves. If the vendor read it wrong he lied, and if they relied -on him they should not suffer. The case recited in Cro. Jae. 386, shows that both guessed at the weight of the madder, and the court says that because neither knew the weight there was no fraud, and it was negligence not to inquire. The authorities cited in 2 Parsons, 271, and Swan, 446, simply state the proposition that no man should rely on a mere opinion given by way of puffing. That differs from a statement of a fact. When a lie is told nobody is expected to rely on it.
    4. It is claimed that it is only infirm and blind men, etc., who can claim to have been deceived, etc. I say no. See Smith on Cor. 231, (152) note; Watson v. Boulson, 7 Eng. Law and Eq. 588; Dobell v. Stevens, 3 Barn. & Cress. 623, 10 E. C. L.; Hurst v. Moore, 2 Bari’, 107, etc.
    5. The answer does not only aver misrepresentation but misreading.
    
      William Craighead, for defendant in error:
    The averments of the answer would, as I believe, exempt the defendants from liability for the purchase-money, provided they were not guilty of negligence in relying upon the reading of the contract by said Van Hook.
    
    The answer, as it appears in the record, contains none of the averments material to a defense resting upon fraud, .and giving the right to the injured party to rescind on the ground of fraud, nor any allegation of an attempt or willingness on the part of the defendants to restore what had been delivered and received pursuant to the contract.
    Pleadings should charge fraudulent intent in positive ■terms, and not leave it to be inferred from the falsity of the facts stated in the pleading. Although it may appear by inference that the design was to defraud, inasmuch as •deception must necessarily result from the alleged pretense, yet the court will not, in support of pleadings, infer a criminal intention where the pleader has not ventured directly to affirm that it existed. Hands and wife v. Lendall, 15 •Ohio, 671; 2 W. Law Jour. 297.
    A party seeking to rescind a contract on the ground of mistake or fraud, must first place the other party in statu, quo. Bartlett v. Drake, 100 Mass. 174; Taft v. Wildman, 15 Ohio, 123; Miller v. Woods, 21 Ohio St. 85; Williamson v. Moore, 2 Disney (0.) 30; 44 Mo. 275 ; 49 111. 449 ; 41 Ga. 171; 7 "Wis. 503; 32 Yer. 1; 52 111. 397; 1 Met. 547; 14 Ind. 49; 7 Allen 248; 33 Maine, 17, 461; 36 Maine,’350; 38 Maine, 589 ; 41 Maine, 565.
    The counsel for the plaintiff in error proceeds upon what I regard as an erroneous view of the law of contracts, as affected by fraud. A contract tainted by fraud is not void, but voidable only, and that at the election of the party injured alone. Chitty on Cont. 784; 3 Poster (N. H.) 128; 5 Mass. 116; 19 Maine, 281; 15 M. & W. 216; 2 Excheq. .358; 8 Poster (N. H.) 324; Fisher v. Miller, 103 Mass. 503.
   Rex, J.

The only question made in this case is: Does the answer of the defendants below state facts sufficient to ■constitute a defense to the cause of action set out in the petition of the plaintiff ?

We think it does. It is claimed, however, by counsel for the defendant in error, that the answer is defective in this: that it does not also aver that on the discovery of the fraud, and before they repudiated the alleged contract, the defendants tendered to Van Hook the articles of property described therein, on the principle that “a party seeking to-rescind a contract on the ground of mistake or fraud, must first place the other party in statu quo.” This rule is undoubtedly applicable in all cases where the property, sold under a contract, was delivered to the party seeking to rescind it, on the ground of fraud; but we do not think it is-applicable to this ease.

In this case the defendants, by their answer, say that they did not agree to any of the terms or conditions contained in the alleged contract sued on; but, on the contrary, that their signatures were procured thereto, they being utterly ignorant of its contents, by the fraudulent pretense and representation of Van Hook; that the same was a recommendation to the new board of education, to be thereafter elected, to purchase the 'maps, books, and keys therein described, and which, as fraudulently read to them by Van Hook, was a mere recommendation to such new board of education for that purpose.

The truth of the answer being admitted by the demurrer, it is quite clear to us that when the defendants discovered the fraud that had been attempted to be practiced upon them by Van Hook, it was not necessary on their part,-in order to rescind the alleged contract, to tender to Van Hook the property which he had placed in the hands of an agent selected by himself, and to which act, as a delivery of the property to them, the defendants did not in any manner assent.

Neither the alleged contract nor the order issued by the clerk is negotiable. The plaintiff below, who is the assignee of Van Hook, holds them, therefore, subject to the-same defenses that could have been made against them in the hands of Van. Hook.

It is also urged by counsel for the defendant in error that the plaintiff's in error had no right to rely upon the state-ments and representations of Van Hook as to the contents and effects of the paper they signed. Concede it. It does not therefore follow that they ought to be compelled to pay the amount claimed to be due on the alleged contract, because they believed him and relied on his statements.

There is no question here of innocent holders, to be injured by the faith of the plaintiffs in error, in the statements of Van Hook. The defendant in error had actual notice of the fraud of Van Hook at the time the order and alleged contract were assigned to him, and if they had been negotiable, he could have no just cause of complaint.

For error of the court in sustaining the demurrer to the answer of the defendants below, the judgment will be reversed, and the cause remanded for further proceedings.

Judgment accordingly.

Welch, C.J., White, Gilmore, and McIlvaine, J.J., concurred.  