142 N.Y.S. 602 | N.Y. App. Div. | 1913
The defendants appeal from a judgment against them for fraud. In 1908 they sold realty to the plaintiff. The contract therefor required his execution of a second and purchase-money mortgage, payable in installments of $100 or more at the interest periods. Sometime after his purchase the plaintiff made a contract with a realty company for exchange of the said realty as incumbered for realty owned by that company. His evidence is that the search incident to such exchange first revealed to him that the said purchase-money mortgage provided that if he sold the realty that mortgage would become instantly due and payable. He testifies that, therefore, he could not perform the contract of exchange, but he was compelled to seek reformation thereof, and incident thereto, to raise the money to pay off the said purchase-money mortgage and to substitute another and a satisfactory obligation. The damages recovered represent the expenses of such substitution. The evidence adduced by the plaintiff is that when he executed the said purchase-money mortgage he was accompanied by his wife. He was and is totally blind. He testifies finally that upon that occasion neither he nor his wife asked about the contents of the mortgage, but that Mr. Hald read over the mortgage to bim but not the provision in question; that neither then nor
Our attention is called to the refusal, under exception, of the learned court to charge as follows: “I ask your honor to charge that if the jury find that the plaintiff signed this paper without making any inquiry as to its contents as matter of law he was guilty of negligence.” If the jury found that the defendants were guilty of a “positive, willful wrong or fraud,” negligence on the part of the plaintiff was not a bar to relief. In Wilcox v. American Tel. & Tel. Co. (176 N. Y. 115), Cullen, J., writing for the court, says: “ The ground on which the learned trial judge disposed of the case, as appears in the opinion rendered by him upon denying the motion for new trial, was that the negligence of the plaintiff in failing to read the paper which he signed precluded him from attacking its validity. We think no such rule of law prevails in this State, though there may be dicta in the'text books and decisions in other jurisdictions to that effect. It was expressly repudiated by this court in Albany City Savings Institution v. Burdick (87 N. Y. 40), where Judge Earl said: ‘ It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded when he demands relief that he ought not to have believed or trusted him. Where one sues another for negligence, his own negligence contributing to the injury will constitute a defense to the action; hut where one sues another for a positive, willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief.’ (See, also, Welles v. Yates, 44 N. Y. 525; Smith v. Smith, 134 N. Y. 62.)” In another part of his charge the learned court, in answer to a request for an instruction that if the plaintiff could by ordinary diligence have made inquiry and ascertained the falsity of the alleged misrepresentations he cannot recover, said: “ If this man had his eyes,
I cannot say that the verdict was excessive. The plaintiff intended to take the property incumbered inter alia with a mortgage with a life of about 12 years, and supposed that he had done so, but when he came to perform the contract for exchange thereof to the realty company, which contemplated this incumbrance, he could not, because the mortgage, instead of capable of existence for a considerable period, became immediately due. Therefore, he had to remove the incumbrance and satisfy the realty company. His testimony is that he paid out $500 for that purpose. He is corroborated by the person who labored for him." There is testimony that the outlay was fair and proper. There was counter evidence that the charge made against the plaintiff for such service was too great, so that there was a question for the jury. The court instructed them properly: “ He could not voluntarily increase the damages to the defendants by paying more than he ought to pay, but if the defendants committed a fraud and if this loss grew naturally out of it and if he did the best he could to reduce the amount of the damages, he is entitled to indemnity from the defendants.”
I recommend affirmance of the judgment and the order, with costs.
Burr, Thomas, Oarr and Putnam, JJ., concurred.
Judgment and order affirmed, with costs.