
    William E. Dorwin et al., Resp’ts, v. John B. Westbrook, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed May 4, 1895.)
    
    1. Evidence — Declarations.
    In an action by the contractor against the railroad company for work in the construction of a railroad, the declarations of the engineer, tending to show that he knew that his final estimate was wrong, are competent on the issue as to his fraudulent intent.
    3. Estimate op engineer. — Fraud.
    The estimate of the engineer, in case of bad faith and fraud on his part, is not conclusive.
    3. Evidence — Contemporaneous acts.
    Contemporaneous acts of fraud are not admissible on the question of intent, where they call for the investigation of a subject outside of the issue and which the party is not supposed to be prepared to meet.
    4. Release — Fraud.
    The finding that the plaintiff was induced to sign the release by fraud was held not to be sustained by the evidence.
    Appeal from a judgment entered on a verdict in favor of plaintiffs, and from an order denying a motion for a new trial, made on the minutes.
    
      Thomas D. Husted and S. D. Halliday, for app’lt; Martin S. Lynch, for resp’t.
   Merwin, J.

After the decision of this case on a former appeal (71 Hun, 405; 54 St. Rep. 380), the complaint was amended bji adding allegations that the final estimates of the chief engineer Roberts were inaccurate and false to his knowledge, and so made for the purpose of cheating and defrauding the plaintiffs, and that the defendant refused to appear with plaintiffs before the engineer for the purpose of obtaining correction of the same. The main issues litigated at the trial now under review were whether the action of the engineer was in bad faith and fraudulent, and whether the release of 8th April, 1892, signed by the plaintiffs was operative. Both of these issues were found in favor of the plaintiffs. The defendant claims that, as to the release, the verdict is against the évidence, and he also claims that the court erred in admitting in evidence declarations of the engineer as to the character of the excavation in controversy, and also his acts in regard to classification of other excavations. The declarations of the engineer tending to show that he in fact knew tháfr his final estimate was wrong would seem to be competent on the issue as to his fraudulent intent.

■ His acts as to other excavations with which the defendant was not connected present a different question. The plaintiff called as a witness one Harvey, an engineer, who testified that in 1891, he was engaged on the railroad, though not at the particular place in question, and had been on the road, and examined the cuts and borrow pit in question; that he knew what classification the engineer Roberts placed upon similar material to that taken out of this piece on other parts of that line; and the witness was then allowed to state, over the defendant’s objection and exception, that Roberts classified similar cut as sold rock. This is claimed to be competent on the subject of the intent of the engineer in the classification of the plaintiffs’work afa less rate for solid rock. It, however, called for the investigation of a subject outside of defendant’s contract, and which defendant would not be supposed to be prepared to meet. It did not appear that the contracts under which such classification was made were similar to the contract here. In some cases other contemporaneous acts of fraud are admissible on the question of intent. The rule is one that needs to be carefully applied, especially when the rights of third persons are involved. We think it should not be applied here, and that the evidence objected to was improperly admitted. Hor ■can we properly say that it was harmless.

The defendant also claims that the court erred in declining to charge that “the plaintiffs cannot recover by reason of any fraud or dishonesty of the chief engineer in the final estimate, without connecting the defendant with that fraud.” . In Sweet v. Morrison, 116 N. Y. 19; 29 St. Rep. 445, which was a case quite similar to this as to the situation of the engineer it was said, at page 34,116 N. Y., that “in the absence of proof of corruption, bad faith, or misconduct on his part, or palpable mistake appearing on the face of the estimate, neither party can be allowed to prove that he (the engineer) decided wrong as to the law or facts.” The inference would be that, if bad faith and fraud on his part were shown, the estimate would not be conclusive. An award may be attacked for fraud on the part of the arbitrator. Masury v. Whiton. 111 N.Y. 679; 19 St. Rep. 141; Hoffman v. De Graaf 109 N. Y. 638; 15 St. Rep. 197; Perkins v. Giles, 50 St. Rep. 232; Morse, Arb. 539. If an architect’s certificate is refused in bad faith or unreasonably, a recovery may be had on proof of performance; Bowery Nat. Bank v. Mayor, etc., 63 N. Y. 336; Doll v. Nodle, 116 id. 233; 26 St. Rep. 629. We think that the court did not err in declining to charge as requested. If, for any reason, in order to protect the rights of the defendant with the railroad company, the latter should be made a party to the litigation over the estimate of the engineer, the defendant should have taken the proper steps to have brought the company in. No defense on that line is set up.

Upon the subject of the release, the claim of the plaintiffs, in substance, is that its execution by the plaintiffs was fraudulently procured by the defendant or his agents. The plaintiffs were partners, and the release was signed by the plaintiff W. E. Dorwin, in the name of the firm, and no question is made about his authority to sign for the firm such an instrument. • It was under seal, and that, as the court charged, and as we must assume, was conclusive •evidence of consideration. Gray v. Barton, 55 N. Y. 71. Dorwin testified that he did not know the contents of the paper; that he was told that it and other papers he there signed were receipts, and signed them on that supposition. The court charged that “if Mr. Dorwin knew it was a release he was signing, or if Mr. Dorwin was not deceived by the statement made to him that it was a receipt, did not rely upon that statement, might as easily have read it as not, but was deterred from reading it only by the fact that he relied upon the statement that it was a receipt, it was his duty to know what he was signing, and he is barred by this paper”; that “he has got to satisfy you that he did not understand that he signed that paper knowing it to be a release, but that he was deceived purposely and intentionally by those parties who called it a receipt, and directed his attention from the true condition of affairs, and thereby got a discharge of the claim without his knowing it. The burden of proof is with him to satisfy you upon all those facts.” The jury in effect, therefore, found that Dorwin did not know that, he was signing a release, and that the defendant or his agent purposely deceived him, and by artifice obtained his signature. The transactions between the parties on the Sth April, 1892, related to two contracts for railroad work. As So one there appears to have been no complaint at any time about the final estimate of the engineer. The other was the contract on which this action is based. Upon that occasion the plaintiff W. B. Dorwin signed eight papers, four as to each contract; there being as to each a receipt in full, a release under seal, a surrender in writing of the original contract, and an affidavit of no outstanding claims against the property. The papers were prepared by Mr: Husted, who was present, acting as attorney for the defendant, and the release, affidavit, and receipt of each set were attached to the original contract upon which the surrender was written. The receipt and surrender were signed, “ W. E. Dorwin & Co.;” the release, “W. E. Dorwin & Co., by W. E. Dorwin;” and the affidavit, “W. E. Dorwin.” The releases were acknowledged and the affidavits sworn to before Mr. Husted, as notary public. A week or two before this. Mr. Dorwin called on the defendant, and, as Mr. Dorwin testifies, claimed that the estimate of the engineer was not correct, and wanted the defendant to go to the engineer, and have it corrected, to which defendant replied that “he could not go, and told me to go and do the best I could, and he would be satisfied with whatever I did.” Dorwin saw Roberts the next day, but he refused to change the estimate. At the interview on the 8th April, nothing, so far as appears from the testimony of Dorwin, was said about his interview "with Roberts. They figured up the amount due on the basis of the engineer’s estimate, and then the defendant, at the request of Dorwin, drew and gave him eleven checks for different amounts, being amounts that plaintiffs owed to different parties. A statement of the account was prepared and given to Dorwin. This was headed, “W. E. Dorwin & Go., in Acc. with John E. Westbrook and the first item was a credit: “Mch.- 29. By balance rendered, $7,431.70.” The eleven checks were then charged, each being described, and amounting in the aggregate to $6,286.81; and the last entry was: “By balance, $1,144.89.” This balance, as it seems to be conceded, was held by defendant to await the discharge of two liens understood to have been filed. After the checks were drawn, then, as Dorwin testifies, “Mr. Husted handed me over some papers, with one hand on the papers, and said, ‘Sign those receipts,’ and took the other hand, and turned them up, and showed me what to sign, and I read nothing and saw nothing read.' There was not one-single word read to me on that day. * * * I signed a number of times,.because I was receiving a number of different checks. * * * Mr. Hus'ted didn’t take any acknowledgment from meat that time, and I didn’t swear to any affidavit. * * * When I signed those papers, I had no knowledge ' of what the papers contained. I never had read them oil heard them read, and their contents was not stated to me in any way. * * * .1 believed I was signing receipts for the money that I got for the several checks." On the part of the defendant, it was shown by the testimony of the defendant himself, his clerk who drew off the account, and Mr. Husted, that all the papers, including the releases, were read over to Mr. Dorwin, and that there was then a complete and full settlement of both contracts. Taking the version of Mr. Dorwin to be correct, nothing was done to prevent his reading the papers. They were called receipts, but nothing was said that they were only receipts for the checks or the money represented by the checks. Dorwin made no reservation of his claim for wrong classification. The defendant testifies that Dorwin said had concluded to settle on the basis of the estimate as made, and his acts, as testified to by himself, render that probable ; and, besides, he does not deny that he made the statement as the 'defendant testified. The defendant had other railroad contracts, and Dorwin, prior to this occasion, had, as he admits, knowledge of the custom of defendant, on the settlement ol his contracts, to require the execution of releases such as were executed here. He then must have known that, as to the undisputed contract involved in this transaction, the defendant would be apt to require such at release. Dorwin says he supposed that all the papers he signed 'were ordinary receipts for the moneys represented by the checks, but the truth of this supposition is shaken by the fact that he signed in different ways. He was a business man of long experience. This supposition is also shaken by the fact that, in calling-'by letter on the 4th May following for the balance of the money reserved, he referred to it as being already receipted for.

The claim of the plaintiffs is, in substance, that the release and surrender were procured by fraud. The evidence does not, we think, sustain this claim. Written instruments, signed by parties-have full opportunity to know the contents, should not be stricken, down unless the evidence is reasonably clear that in obtaining their execution, a fraud has in fact been committed. The verdict in this case, to the effect that the defendant or his agents purposely deceived Mr. Dorwin, and by artifice obtained his signatures, and that he did not understand the true character of the papers, is, we think, against the weight of evidence.

Judgment and order reversed, and new trial ordered; costs h> abide the event.

Hardin, P. J., concurs.

Martin, J.

(dissenting). — The recovery in this action is obviously just. That the defendant was indebted to the plaintiffs to' ah amount at least equal to the amount of the verdict clearly appears from the evidence. . The jury was warranted in finding that the work performed by the defendant was incorrectly classified by the engineer in charge, and that he acted fraudulently and in bad faith in making such classification. The classification having been found to be fraudulent and made in bad faith, it was not binding upon the parties.

I think the evidence of the witness Harvey, which showed that the engineer in charge had classified similar material taken out on the same line as solid rock, while he classified that taken out by the plaintiffs as only forty per cent, solid rock, was admissible to show that the engineer was acting in bad faith in making such, classification.

Nor was the finding of the jury that the signatures to the releases signed by the plaintiffs were obtained fraudulently so far against the weight of evidence as to justify us in granting a new trial. The question whether the plaintiffs’ signatures to such releases were obtained by artifice, and by the fraudulent representations of the defendant that they were only receipts for the money which he had paid to the plaintiffs, or whether as claimed by the defendant, that they were read over to the plaintiff Dorwin, and understood by him, was a question of fact for the jury. While upon that question the defendant had the greater number of witnesses, yet the plaintiffs’ testimony was corroborated by circumstances which tended to render it improbable that he would have signed the releases in question unless the alleged fraudulent representations had been made. Upon that question the testimony was conflicting, and it was properly submitted to the jury. It is not emougli that this court might have reached a conclusion adverse to the jury as to the force and weight of the evidence. A verdict should be set aside, on the ground that it is against the' weight of evidence, only where it is so clearly and manifestly against the preponderance of evidence as to furnish proof in itself that the jury was influenced by passion, prejudice, corruption, ignorance, or mistake. Applying that rule to this case, it becomes quite obvious that the verdict should not be disturbed. Moreover, if the court were of the opinion that the discretionary power granted to the trial judge to set aside the verdict, as against the weight of evidence, was not properly exercised,'and that a new trial should be granted upon that ground, it should be granted only upon the payment of costs by the appellant.

Í think the j udgment should be affirmed, or if a new trial is to be granted, on the ground that the verdict is against the weight of evidence, it should be upon the payment of costs by the defendant.  