
    Albert De Cernea, Resp't, v. Russell R. Cornell et al., App'lts.
    
    
      (New York, Common Pleas, General Term,
    
    
      Filed April 3, 1893.)
    
    1. Contract—Evidence—Custom.
    In an action for breach of contract for sale of paper, where the defense-was fraud in reducing the agreement to writing, and that defendant’s, agent signed for them without reading the contract, evidence of a custom or usage in the sale of paper in calculating the cost, known to plaintiff, is admissible on the question of fraud.
    2. Same—Direction of verdict.
    It appearing that plaintiff had been engaged in the paper trade for a number of years, and k"pw that the price of paper of the size called for at the mill was almost, double that named in the contract, and the agent tesli- - fving that that size was not spoken of between them; that plaintiff drafted tile contract in an adjoining room, and that he signed without reading under pressure of plaintiff’s extreme urgency for celerity in shipment, a direction of a verdict for plaintiff was error.
    Appeal from a judgment of the general term of tlm city court of New 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 amount paid by the vendee in open market for paper of like quantity and quality.
    
      Edward Wells, Jr., for resp’t; Alfred G. Reeves and George G. Beattys, for app’lts.
    
      
       Reversing 49 St. Rep., 871.
    
   Bischoff, J.

Plaintiff sought to recover damages alleged to have accrued to him from defendants’ breach of a contract writing, whereby they bound themselves to sell and deliver to him one thousand reams of-baker’s light straw paper, 20x30, sixteen pounds to four hundred sheets, at nineteen cents per rearm The defense was, that by general usage in the paper trade, a ream 15x20 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 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 St. Rep., 339; Fallon v. Metropolitan Life Ins. Co., 47 id., 111. True, the court below, being without the powers of a court of equity, could not award defendants affirmative equitable relief: but by express provision of the Code of Civil Procedure, § 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 jury.

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; Rice on Evidence, vol. 2, p. 906, etc. 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. London, 73 id., 610; Bklyn. C. T. R. R. Co. v. Strong, 75 id., 592; Koehler v. Adler, 78 id., 291; Wohlfahrt v. Beckert, 92 id., 497; Munoz v. Wilson, 111 id., 300; 19 St. Rep., 372; Canajoharie Nat. Bk. v. Diefendorf, 123 N. Y., 191; 33 St. Rep., 389.

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 20 x 30 Mentioned, that plaintiff himself drafted the 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 practiced 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 on Parol Evidence, 67.

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

Bookstaver and Pryor, JJ., concur.  