[225 N. Y.] Opinion, per CRANE, J. [Jan., ordered sheep instead of trees would the reformatory powers of equity have been required to give the purchaser damages for bad trees? The rule seems to be that where a party is tricked into signing a contract the material parts of which are not in accordance with the oral agreement such a paper is not a contract, but is void. It is void until in some way affirmed by the party deceived. Some cases speak of it as voidable, by which they mean that the party may, if he choose, affirm and adopt it, while a contract which is voidable only is good till disaffirmed. (Standard Manufacturing Co. v. Slot, 121 Wis. 14.) The difficulty has arisen, I believe, through a misunderstanding of the rule of evidence that written contracts cannot be varied by parol testimony. This rule only applies to such writings as are contracts in fact or in law, but never prevents oral testimony showing that through fraud there is no written contract. Thus in Black v. Wabash, St. Louis & P. Ry. Co. (111 Ill. 351) it was said regarding evidence of an oral agreement with an agent which was excluded on the trial: "The object of the excluded evidence was not to change the terms of an agreement which was admitted to have a valid existence, but rather to show that by reason of the circumstances under which it was obtained it was in legal effect no agreement at all." Wharton on Evidence, section 931, states it this way: It is also always admissible for a party to show that his execution of a contract was induced by fraud or compulsion. "Before the rules excluding parol testimony to vary documents can be applied, we must determine a document legally exists." Western Manufacturing Company v. Cotton & Long (126 Ky. 749) says this: 1919.] * Opinion, per CRANE, J. [225 N. Y.] "Where a person by ostensibly reading a contract to another obtains his signature to an agreement materially different from the reading, it is a fraud which invalidates the contract." When by fraud or misrepresentation a written memorial of a contract essentially variant from the agreement actually made shall have been imposed on a party, the deed or writing is not his. It is not obligatory. And in such cases the fraud or misrepresentation may be proved without contradicting the written evidence." (Cited from Tribble v. Oldham, 5 J. J. Marsh. 142.) That a deception as to a material part of a writing is as fatal as a misrepresentation of the whole paper or of its nature is made plain by the following authorities: Maxfield v. Schwartz (45 Minn. 150); Gibbs v. Linabury (22 Mich. 479); Stacy v. Ross (27 Texas, 3); Black v. W. St. Louis & P. Ry. Co. (supra); Eldorado Jewelry Co. v. Darnell (135 Iowa, 555); Trombly v. Ricard (130 Mass. 259); Beck & Pauli Lithographing Co. v. Hauppert & Worcester (104 Ala. 503); Foster v. Mac Kinnon (L. R. 4 Com. Pleas, 704). The case of Cole Brothers & Hart v. Williams (12 Neb. 440) is somewhat in point. The plaintiff sued for goods sold and alleged a deduction of $100 for lightning rods purchased from the defendant. The defendant set up a written contract whereby the price of the lightning rods agreed to be paid by the plaintiff was $424.25. The plaintiff replied by saying that he did sign a certain pretended written agreement concerning rods but that he was deceived by the agent into believing that it made no mention of price. A verdict for the plaintiff was sustained upholding his oral contract for $100 only. Through all these cases we find the principle enunciated that where a paper has been signed by a party which purports to be his contract, but which is different from the agreement actually made in a material part, and he [225 N. Y.] Opinion, per CRANE, J. [Jan., has been fraudulently deceived into believing that the writing is in accordance with the spoken words, there is no contract. It is void; there has been no meeting of the minds; it may be disregarded and the plaintiff may recover or defend according to the contract orally made. Reformation is unnecessary. The rule that a written contract cannot be varied by parol evidence is not applicable. The party seeks not to establish the written contract with changes but to prove that there was no written contract through the fraud of the party claiming it. And if the writing be void as a contract the party may sue at law for damage in a case such as we have here. The plaintiff bought trees of the defendant. It was necessary to wait three years after planting to ascertain whether he got what he purchased. They proved inferior trees. He could not return them and was entitled to his full damage, not merely the return of the purchase price. (White v. Miller, 71 N. Y. 118.) No writing was necessary to establish his claim, but it was important to the defendant if this common-law liability had been limited by agreement. The defendant set up such an agreement in writing. The plaintiff could meet it by showing that his signature because of fraud was in law no signature and the paper no contract. To this effect we find the cases of our own state. Smith v. Ryan (191 N. Y. 452, 457) was an action of ejectment wherein the defense set up a deed and the plaintiff met it by proof that the grantor was insane at the time it was executed and, therefore, was no deed. CULLEN, J., said: "There are two kinds of fraud which differ essentially in their character; in the one the grantor is induced to convey his property by fraudulent representations as to the value, nature or character of the consideration he receives for the conveyance. This is sometimes called 1919.] *Opinion, per CRANE, J. [225 N. Y.] fraud in the consideration. In the other case the grantor is deceived into the execution of an instrument of the contents of which he is ignorant. This is sometimes called fraud in the execution of the deed. The distinction between the two cases lies just here. It is elementary law that the assent of the parties is necessary to constitute a binding contract. In the first case the assent of the party though obtained by fraud is, nevertheless, obtained not only to the execution of the instrument, but to the contract which it evidences. In the second case there is procured only the signature to and execution of the written instrument, but not assent to the contract therein stated. In cases of this latter class the deed can be avoided at law." Wilcox v. American Telephone & Telegraph Company (176 N. Y. 115, 118) was a case where the defendant produced a paper giving it a right to use the plaintiff's land for the erection of its poles. The plaintiff in his action of trespass showed that it had been obtained from him under the false assertion that it was a receipt. Here concededly there was no contract. It was said: "The plaintiff does not attempt to rescind a contract as induced by fraud; the charge by him relates, not to the contract, but to the instrument which purports to represent the contract." In International Ferry Company v. American Fidelity Company (207 N. Y. 350, 353) an oral agreement was made for insurance. The policy subsequently delivered reducing the contract to writing through fraud did not contain the agreement. The. court said: "The representations fraudulently made by the defendant did not affect the actual contract. That remained effective and could have been enforced by the plaintiff, in a proper action, in accordance with its provisions and conditions." A release was pleaded by the defendant in Kirchner v. [225 N. Y.] Opinion, per CRANE, J. [Jan., New Home Sewing Machine Company (135 N. Y. 182, 189), to bar the plaintiff's recovery. It was said that, without a reply, plaintiff could meet this release by showing that through fraud or mistake his cause of action was included in the release when it should not have been. "Generally speaking," says the court, "whatever proofs would be regarded as sufficient to enable the plaintiff to maintain an action for the reformation of the release, so as to except from its provisions the demand in suit, would be available to him in this action by way of avoidance of its terms." A distinction has been sought between the kind of writings involved. It is said that many of these cases apply to releases or receipts or papers never intended as contracts and that such may be avoided at law for fraud but that a paper which reads like a contract is always a contract till touched by equity provided only that the parties intended a writing to express their intention. The fact that through the fraud of one the intention is not expressed is silenced at law by the oral evidence rule. I cannot believe that such a distinction exists. Fraud is a great leveler, before it all forms fall and the principle which the authorities enunciate is not determined by the kind of paper in question but by the evil of deception and overreaching. All instruments of every nature come under the same principle. Where through deception a paper is signed which was never intended by the parties, it is no contract, no deed, no release, no receipt. In certain instances equity may provide the only relief. Where a party seeks not to avoid a writing but to establish it because otherwise he would have no claim at law contracts or grants required by statute to be in writing equity must reform as it is the only remedy. Reason also indicates that a party under the circumstances of this case should not be compelled to go into equity to seek reformation in order to recover. |