Clausen v. Title Guaranty & Surety Co.

153 N.Y.S. 835 | N.Y. App. Div. | 1915

Dissenting Opinion

HOTCHKISS, J.

I dissent. Conceding that defendant had the _ right to open the account for fraud, or under such circumstances as would constitute mistake according to its legal definition, there was no proof of either. The original contract was made on March 2, 1904, and ran for two years. At the end of this period a new contract was entered into for a further term of two years. At an early stage of the first contract differences arose between the parties as -to* its proper construction, with respect to plaintiff’s percentage in cases of co-surety contracts. Gott, then defendant’s manager, and later its vice president, testified that these differences were repeatedly discussed between himself and plaintiff’s representative, and finally he was convinced that plaintiff’s construction was fair and right, because what he would gain in one feature he would lose in another (folios 942, 950). Beginning with the first contract, plaintiff rendered monthly statements of his account, based on his construction of the contract, and these statements were retained and never objected to, save so far as they *847were the subject of discussions by Gott as above stated. So late as February 20, 1906, defendant’s president characterized the contract as “entirely fair in every way” (Exhibit 133, folio 1335). When it came to formulating the second contract, its terms were in certain particulars made such as to differentiate it from the first contract; but no change was made with respect to the feature now under discussion, and the parties thereafter continued to the end, as theretofore, to render and accept accounts based upon the construction which the plaintiff had originally put upon the contract. This construction is certainly not one of which the contract was not susceptible, although it may not have been such as this court would, as an original proposition, have put upon it. But, if the doctrine of practical construction means anything, it must be that it is now too late for the defendant to say that the construction thus adopted, knowingly acted upon, repeatedly approved, and solemnly ratified, was wrong, and that the account should be recast from the beginning.





Lead Opinion

PER CURIAM.

Judgment and order affirmed, with costs, upon the opinion of Hamilton Odell, Referee.