2 Abb. Ct. App. 465 | NY | 1866
By the Court.
On the facts found by the judge the plaintiff was entitled to judgment. The original agreement for the sale of the property was not in writing, but it was performed by the plaintiff when he executed the conveyance, and the defendant, who took the benefit of the contract
At the time the conveyance was executed and delivered, he was not prepared to transfer the stock as he had agreed; he induced the plaintiff to accept a covenant, the purpose of which, on his part, evidently was to merge the original agreement under the pretense of fulfilling it, and by this device to defraud the plaintiff of two thousand five hundred dollars of the purchase money. To this end he gave the plaintiff to understand, as well at the time of the original agreement as at each of the subsequent transactions, that the scrip he was to receive represented, in fact, full paid stock to the amount of five thousand dollars; and this he knew to be false. He afterwards induced him, by the same fraudulent means, to surrender this covenant on receiving a certificate, nominally for fifty shares of one hundred dollars each, but really representing only half that amount of stock.
If the liability of the defendant depended on his written consent, he would still be responsible for the remaining two thousand five hundred dollars of stock. In that instrument he agreed to transfer to the plaintiff five thousand dollars of the. stock of the Mutual Bank, and this agreement he has only in part performed. He can derive no aid frpm the adroit and slippery language of the subjoined guaranty. One who uses words in a deceptive and double sense, for the purpose of misleading the party with whom-he contracts, is bound by them in the sense in which he intended they should be understood. Hoffman v. Ætna Ins. Co., 32 N. Y. 405; Barlow v. Scott, 24 Id. 40; Mowatt v. Lord Londesborough, 3 Ell. & B. 334, 367; S. C., 25 Eng. L. & Eg. 25; and see 4 Ell. & B. 1.
The surrender of the covenant, having been procured by the
But there was no merger of the parol agreement to pay the stipulated price. The subsequent writings, signed by the defendant, neither superseded nor extinugished his previous undertaking; and oral evidence was properly received to show the terms of the unwritten contract, and to expose and defeat the fraud attempted to be practiced by means of these writings, under color of carrying out his original engagement. Hutchins v. Hebbard, 34 N. Y. 24; Bradley v. Bosley, 1 Barb. Ch. 125, 152; Johnson v. Miln, 14 Wend. 195; Morris v. Whitcher, 20 N. Y. 41.
Upon the state of facts established by the proof and found by the judge, the motion to dismiss the complaint was properly denied. We have no authority to reverse the judgment, by reason of defects in the pleadings, which did not affect the substantial rights of the defendant. Code of Pro. §§ 11, 169. The averment in the complaint that the original agreement was in writing was not sustained by the proof; but we are bound to treat the variance as immaterial, in the absence of affirmative evidence that it misled the adverse party. Oode of Pro. § 169. The gravamen of the allegation was, that such nn agreement was made, and the question whether it was written or oral was unimportant, except so far as it affected the mode of proof. The judge was therefore at liberty, without directing an amendment, to find the facts in accordance with the evidence. Oode of Pro. § 171. The findings were within the scope of the allegations, and there was no failure of proof within the meaning of the Code.
Upon the facts alleged, the plaintiff was entitled to equitable as well as legal relief; and, as he demanded both, the -’judge was right in awarding that which seemed appropriate to the case made by the proof. Emery v. Pease, 20 N. Y. 62, 64;
Other exceptions were taken on the trial which it is not material to discuss, as they are all plainly untenable. The cause was well tried, and the judgment should be affirmed.
All the judges concurred.
Judgment affirmed, with costs, and ten per cent, damages.
