
    De Cernea v. Cornell and Another.
    (City Court of New York—General Term,
    December, 1892.)
    Plaintiff entered into a written agreement with defendants for 1,000 reams of paper at a stipulated price. Defendants failed to deliver on demand, whereupon plaintiff went into the open market and purchased the same at a loss. In an action to recover therefor, defendants admitted substantially all the material allegations of the complaint, and for a defense, by way of avoidance, alleged fraud in the procurement of the contract, and further, a custom of trade to modify said agreement. On the trial, evidence of the existence of such trade custom was rejected. At the close of the testimony, plaintiff’s attorney asked the court to direct a verdict for plaintiff, which was granted. Defendants’ attorney thereupon moved that the case be allowed to go to the jury on the question of fraud, which was denied. Held, that the rulings of the trial justice were proper; that as the contract was clear, unequivocal and free from any ambiguity or doubt as to the meaning of the language therein used, and as there was no evidence of any conversation between the parties at the time of or prior to the signing of the contract, other than that embraced therein, there was no evidence of fraud to submit to the jury.
    Appeal from a judgment in favor of the plaintiff entered upon a verdict of a jury, directed at a trial term.
    
      Edward Wells, Jr., for plaintiff (respondent).
    
      Reeves & Todd, for defendants (appellants).
    
      The plaintiff, doing business in the city of Philadelphia, Penn., under the name of Albert De Cernea & Co., entered into a written agreement with defendants, who constituted the firm of Cornell & Ward, in the city of Hew York.
    The agreement was executed on the part of the defendants by their agent, E. P. Arnold, and was as follows:
    “ Philadelphia, Dec. 28th, 1891.
    “Messrs. Cornell and Ward,
    “ 150 Duane street, Hew York city:
    
      “ Dear Sirs — Please make and ship us at once 1,000 reams of 20 by 30 light bakers straw paper, 16 lbs. to 100 sheets; to be put up in 5 ream bundles. Price to be 19c. per ream, f. o. b. Philadelphia, less 2 per cent cash, ten days from delivery. Paper must be in every respect equal to sample submitted by your representative, Mr. E. P. Arnold.
    “ Yours, very truly,
    “ (Dictated.) ALBEBT DE CERNEA & CO.
    “Accepted by E. P. Arnold,
    
      “ Representing Cornell & Ward.”
    (Being plaintiff’s Exhibit A.)
    Defendants failed to deliver.
    Plaintiff made demand, which was refused.
    He thereupon went into open market and purchased the paper at thirty-eight cents per ream, a loss of $190 on the quantity named in the contract, at the price named therein.
    The defendants in their answer admit substantially all the material allegations of the complaint, and for a defense by way of avoidance, allege that the execution of the contract was procured by fraud on the part of plaintiff, and further sets up an alleged custom of trade, to modify the written agreement and alleges “ that said plaintiff fraudulently procured said Arnold to sign said writing, knowing that it did not contain said terms previously agreed upon, and with the intent to deceive.
    After the testimony was closed, plaintiff’s attorney asked the trial justice to direct a verdict for the plaintiff.
    
      “ The Court — The defendants seek to avoid a contract signed by them, and seek to avoid the responsibility on the ground that they did not read the contract. That is no defense. I, therefore, instruct you to find a verdict for the plaintiff for the sum of $190.
    “ Defendant’s Attorney — I ask your honor to let the case go to the jury, on the question of fraud on the part of the plaintiff in procuring the defendant’s agent to sign that contract.” Motion denied. Exception taken.
   McGown, J.

The making of the contract was admitted, and the defense set up was that the contract in question was drawn in reference to a certain trade custom, and that the said plaintiff fraudulently procured Arnold, the representative of defendants, to sign the contract, knowing that it did not contain the terms -previously agreed upon, and with the intent to deceive said Arnold.

The defendants sought to introduce evidence of the existence of such trade custom, which evidence was properly rejected by the trial justice.

The contract in question was clear, unequivocal, and free from any ambiguity or doubt, as to the meaning of the language therein used.

The size of the paper was therein stated to be twenty by thirty inches, thus clearly indicating the size of the paper ordered, and required by the plaintiff, and there is no evidence of any conversation between the parties, at the time of or prior to the signing of the contract, wherein paper of the size of fifteen by twenty was mentioned or referred to.

There was no evidence of any fraud, on the part of the plaintiff, in procuring Arnold’s signature to the contract, to be submitted to the jury, and no errors committed by the trial justice in the rulings made by him.

Judgment appealed from must be affirmed with costs to the plaintiff and respondent.

Van Wyck and McCarthy, JJ., concur.

Judgment affirmed, with costs.  