15 Misc. 129 | New York Court of Common Pleas | 1895
The action was brought to recover upon the following written instrument:
“It is agreed that the publishers will not be held responsible for any agreement, promise of cuts, etc., not expressed on this contract in writing.
“The A. F. Parsons Publishing Company.
“$10.00. New York, Aug. 14, 1894.
“You are hereby authorized to deliver 10 copies of ‘New York, 1894,’ bound in embossed pamphlet covers, for which I will pay you, or order, the sum of ten dollars upon delivery of same. An editorial review of our business to appear in the publication. Name, W. Hildenbrand,
“Address, 1 Broadway.
“Remarks: To prevent errors, fill this out in ink, and write name and address plainly.”
“It is agreed,” etc., was printed in nonpareil type in one line, at the head of the instrument; “The A. F. Parsons Publishing Com
The question raised on the appeal is by plaintiff’s objection to the admissibility of defendant’s evidence as to the alleged false represensations made by plaintiff’s agent, on the ground that by the instrument in suit the agent’s authority was limited and restricted to the obtaining of subscriptions with such conditions and terms as the subscriber should write on the contract only, and that the plaintiff is not bound by any condition or representation not contained in the contract itself, and also on the ground that fraud had not been sufficiently pleaded in the answer. We think the fraudulent acts complained of were sufficiently set forth in the answer. District courts are not bound to the same strictness in the matter of pleadings as courts of record are, if they can find any allegations which, under any view, may constitute defenses. Crane v. Hardman, 4 E. D. Smith, 448; Blackmar v. Thomas, 28 N. Y. 67. A pleading which informs the plaintiff of the nature of defendant’s defense, and of the character of the evidence by which it is to be sustained, is sufficient. Cohen v. Dupont, 1 Sandf. 260. An answer need only be so expressed as to enable a person of common understanding to know what is intended. Code Civ. Proc. § 2940. If the averments in the answer were defective, plaintiff’s remedy would have been by making it more definite and certain.
In Estelle v. Dinsbeer, 9 Misc. Rep. 485, 30 N. Y. Supp. 226, we said:
“The defense of fraud in inducing a contract may always he set up and proved in these [district] courts for the purpose of defeating a claim founded in fraud. This is too well settled to need the citation of any authority.”
But plaintiff relies principally upon the limitation of the agent’s authority contained in the clause at the head of the written instrument, as follows:
“It is agreed that the publishers will not be held responsible for any agreement, promise of cuts, etc., not expressed in this contract in writing.”
But the instrument, if it could properly be called a “contract” at all, clearly contained only the undertaking of the defendant, for it bound the plaintiff to do nothing. Were it a complete contract, it does not subject the plaintiff to any penalty if she never published the book; and in such case the defendant could have had no remedy had it never been published and he had been injured thereby. There was no agreement as to the form, size, or contents of the publication, nor as to the number of copies to be issued. It is inconceivable that the defendant should have entered into a contract without knowing something about all these matters, and having some assurance in regard thereto. Had the plaintiff published a list of the supposed
But the evidence objected to- did not show, or attempt to show, plaintiff’s part of the agreement. It only tended to show what representations were made to the defendant by the agent for the purpose of securing the order, and that such representations were untrue and misleading, and deceived the defendant. It is not claimed that the agent promised any cuts, etc., or made any agreement whatever. He simply described the book for which he was soliciting subscriptions, and stated what its contents were to be, and we think the court below was clearly right in admitting such evidence. Fraud vitiates all contracts, and no one can, by a limitation such as contained in this instrument, escape from the penalty of the fraudulent representations of his agent made in the scope of his apparent authority. From all the facts in the case, it was necessary that the agent should make some representations as to the character of the work to be published, or else he could get no subscribers, and he was deputed for that purpose. In other words, the plaintiff cannot avail herself of the contract procured by her agent without also subjecting herself to the penalty of any false and fraudulent representation such agent might have made.
This case is very similar to Fashion Co. v. Skinner (Sup.) 19 N. Y. Supp. 62, where there was a similar clause, and the defendant answered by setting up fraud on the part of the plaintiff’s agent. This part of the answer was demurred to, on the ground that it did not state facts sufficient to constitute a defense, and the demurrer was overruled by a judgment for defendant, ordered at special term. On appeal to the general term, this decision was affirmed by a divided court, two being in favor of the affirmance, and one against it. The fact that this was decided upon demurrer, we think, makes no difference in the rule of law applicable to such cases. It is true that the presiding justice who delivered the prevailing opinion did in its course state: “Whether, upon the trial, the proof will sustain the
We therefore find no error in the rulings of the court below upon these questions, and that the case was properly submitted to the jury under a very clear statement of the law by the court, and that the verdict of the jury was not only right, but righteous. The judgment entered thereon should be affirmed, with costs.