Frankenberg v. Perlman

Page, J.: The allegations in the counterclaim that the plaintiff had agreed to repurchase the stock on defendant’s retirement from [175] the business at its book or actual value, and that the plaintiff had falsely represented that as used in the written agreement the words “ face value ” meant book value or actual value, which representation was made fraudulently with intent to deceive the defendant, and that the defendant, relying on said representation and believing the same to be true, signed the agreement, present a cause of action for the reformation of the contract to express the real agreement of the parties. The representation was as to a fact, and not the expression of an opinion, knowingly and fraudulently made to induce the defendant to sign an agreement which in fact did not express their true agreement. These allegations state fraud on one side and mistake on the other, such as would move a court of equity to grant relief. The order should be affirmed, with ten dollars costs and disbursements. Laughlin and Smith, JJ., concurred; Scott and Davis, JJ., dissented.