
    Manning v. Maas.
    (New York Common Pleas
    General Term,
    February, 1893.)
    Fraud avoids all contracts, and when properly pleaded, evidence thereof should he admitted. The exclusion of such evidence is error, for which a new trial will he granted.
    Appeal from a judgment for plaintiff, entered in a District Court of the city of New York.
    
      A. Stern, for defendant (appellant).
    
      P. Q. c& F. L. Fckerson, for plaintiff (respondent).
   Bookstaveb, J.

This action is brought for a breach of contract on the part of the defendant, in refusing to carry out a contract for the purchase of an Otto gas engine. Defendant admitted the making of the contract, but claimed that the same was procured by fraud, in that the plaintiff fraudulently represented that the apjn-oval of one McCallum had been obtained, without which approval the defendant would not have entered into the contract. Upon the trial, various questions were asked by the defendant, tending to show this defense, but the same were objected to by plaintiff’s counsel,, and the testimony thereunder was excluded, to which the defendant excepted. Fraud avoids all contracts, and when the same is properly pleaded, evidence thereof should be admitted, and the exclusion of such evidence in this case, was error, for which a new trial should be granted. Nor was that error cured by the court subsequently admitting a portion of this evidence, but not the whole. The fact that the court permitted the witness Bailey, plaintiff’s agent, to contradict the defendant, in regard to conversations with him, does not cure the error, in refusing to permit the defendant to testify in regard to those matters, but rather aggravates it. But, aside from this, it was fatal error in the court below to propound to the plaintiff this question: “ How much have you suffered by the refusal % ” meaning the refusal to complete the contract, which was objected and excepted to by the defendant. It called for the conclusion of the witness on a matter the court Was to determine for itself after all the facts in the case had been given. The mere conclusion of the plaintiff as to his loss of profits, without stating the cost to him of the engine, or the value of the work, labor and services to have been rendered by him in putting it up, was not sufficient evidence on which the court could properly base an estimate of damages.

Having arrived at this conclusion, it is unnecessary for us to consider at this time the proper rale of damages in such case, as on a new trial it may more clearly appear that the engine told was a patented article, and could be procured of the plaintiff only, or that it was sold openly in the market, and had a value determined by supply and demand, a different rule of damages being applicable in the latter case.

The judgment should he reversed, and a new trial ordered, with costs to the appellant to abide the event.

Bischoff and Pbyoe, JJ., concur.

Judgment reversed, and new trial ordered.  