125 Misc. 853 | N.Y. Sup. Ct. | 1925
The above-entitled action was tried before this court upon a stipulation waiving a jury. Plaintiff, as assignee, seeks to recover from defendant, upon the claim of plaintiff that defendant bound itself to pay the sum of fifty dollars a year for three years, for advertising space in “ The Hotel Book ” to be published by plaintiff’s assignor, Henry Sweetsson, Inc. Defendant paid for one insertion, not knowing that it had been innocently distorted, and now resists further payment.
Unaided by legal counsel, which would have advised open, honest and fair dealing, one Henry Sweetsson sent broadcast through the mail a four-page, printed document to hotel men and others. A careful study of the entire document indicates that Sweetsson intended that all who signed the questionnaire upon the back 'page of the document should be bound to pay the sum of fifty dollars each year for a period of three years for so-called classified advertising. Although no oral representations were made, it is apparent that great skill was employed in drafting the document to deceive hotel men into the belief that the signing of the questionnaire was without obligation to pay. This case calls, not for the construction of a contract, proper in form, nor is defendant in the position of one who unwittingly signed a perfectly plain contract without reading its contents. The questionnaire contains no obligation or promise to pay. It is only by careful study of the entire four pages that it becomes apparent that Sweetsson intended to bind the signers of the questionnaire to a money obligation.
We thus have a document containing no express promise to. pay and couched in terms intended to deceive persons into the belief that the signing of the questionnaire on the back of the document was without obligation to pay.
“ If a mistake on the part of one of the parties to an agreement is caused by the other,, it may entitle him to avoid the contract on the ground of fraud.” (9 Cyc. 395.)
Judgment may be entered in favor of defendant against plaintiff, with costs.