Nesbit v. Jencks

Laughlin, J.: The judgment must stand or fall upon the theory on which the issues were' tried and submitted to the jury. Although no reply was served, the allegations of the answer are deemed traversed or avoided, and the plaintiff was entitled to prove fraud in avoidance of the guaranty agreement. (Code Civ. Proc. § 522; Jackson v. Brown, 76 Hun, 41; Sullivan v. Traders' Ins. Co., 169 N. Y. 213; Bennett v. Edison Elec. Ill. Co., 26 App. Div. 363; affd., 164 N. Y. 131.) Whether the agreement of October sixteenth was made depended upon conflicting evidence which presented a fair question for the ■consideration of the jury. But assuming that it was made, clearly there was no consideration if the tile arches had been previously ■delivered on the premises; and, as there was substantial evidence to the effect that all except about 200 feet had been, previously delivered, the jury should have been instructed as to the effect of this evidence. In the absence of such instructions, it is not at all ■clear that the evidence has been properly considered; and for aught that appears, the jury may have supposed that the plaintiff was entitled to recover if the guaranty agreement was not binding and the agreement of October sixteenth was made, even though the arches had then been delivered. Technically, perhaps, the defendant’s exception was not well taken, for the request presented required an instruction that if the whole or a substantial part of the arches had been delivered prior to the agreement of October sixteenth, the defendant was entitled to a verdict. This, of course, would not follow. The plaintiff, assuming that the guaranty agreement was not valid, and that ■on October sixteenth the defendant agreed to pay for the arches, would still be entitled to recover for such of the arches as were delivered on the faith of that ■ agreement. Moreover, failure to instruct the jury on this point was doubtless owing to an inadvertence on the part of the court, and the exception to the refusal, to ■charge the several requests presented was quite general, and perhaps did not fairly draw the attention of the court to the omission. (Benedict v. Deshel, 77 App. Div. 276; Connor v. Metropolitan St. Ry. Co., Id. 384.) Assuming, however, that the jury understood that the court intended to instruct them that they could not relieve the plaintiff from the guaranty contract on the [146] ground that it was executed by mutual mistake, and that for the purpose- of. this' action it was valid unless his signature was obtained by fraud,, yet we think the evidence is. wholly insufficient to sustain the verdict on the ground of fraud, in inducing the-execution of the guaranty agreement by the plaintiff.. He appears: to have been an experienced, intelligent business man, fairly familiar-with the- English language and with the meaning, of particular-words. He saw at once pn the guaranty agreement being presented to him for signature, that it appeared to embrace these tile - arches, and he does not say that he understood the clause Was., stricken out-before he- signed, but apparently, according to his testimony, he signed relying on.the representation of Simonson that it was not intended to includd them. This is not sufficient evidence of fraud to vitiate the contract. He was aware of the .contents of the contract, and nothing therein contained was concealed from him,. He merely claims to have been misled as to its meaning and against, his own judgment as-to its proper interpretation, At most that was:a mere representation as to its legal effect, and may havei been honestly made. ;Simonsony as appears in the statement of facts, denied that there was any conversation on this point after the prepa- - ration of the contract. In. such case the contract, which was. exe-. cuted by the plaintiff with full knowledge of its contents, should' itself be deemed an important Witness, and should, not be lightly; overcome by-testimony of this character. . .. It follows, therefore, that the judgment and order should be--, reversed and a new trial granted,, with, costs to appellant to abide; the event-. Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ.,. concurred. Judgment and order reversed, new trial ordered, costs to appellant to abide event. ; . ' • •.