Fox v. Tabel

Baldwin, J. The second and third defenses were not demurrable. No man can maintain an action upon an agreement which was confessedly procured by his assertion that he was authorized by another to execute it in his behalf, when such representations were false, and made with intent to deceive and defraud the other contracting party. Nor can it be seriously questioned that, if such representations were true, a release by the principal would be a bar to any action on the contract. The finding of the District Court shows that John Hanna of New Britain, was a dealer in monuments, and known by reputation to Mrs. Tabel, the defendant, ;ag such; that the plaintiff, who lived in Thomaston, and haa formerly been in his employment, on February 23d, 1892, in order to procure an order for a monument from the defendant, who lived in Collinsville, represented to her that he was Hanna’s agent; that this representation was false and made with knowledge of its falsity; and that the defendant was thereby induced [400] to believe, when she signed the contract, that she was contracting with Hanna, through the plaintiff as his agent. The agreement is expressed to be between John B. Fox of Thomaston and the defendant; and he signed it simply with his own name. It called for the erection of the monument on July 13th, 1892. On May 22d, 1892, she learned that the plaintiff was not Hanna’s agent, and thereupon ordered another monument from Hanna, on his agreement to save her harmless from any claim on the contract she had made with the plaintiff. On June 7th, the plaintiff had a monument at Collinsville, properly lettered and ready to be set up there, in conformity to the terms of the contract, when he discovered that another monument had already been erected in the defendant’s cemetery lot. He then called on the defendant, and she, for the first time, notified him that she had found that he was not Hanna’s agent, and had supplied herself with another monument from Hanna himself. The monument thus procured was of a different design from that specified in the contract with the plaintiff. Parol evidence of the false representations made by the plaintiff was properly admitted, notwithstanding the plaintiff’s objections that it tended to vary the terms of a written agreement. Fraud in procuring a contract can always be shown in defense to a suit upon it. Feltz v. Walker, 49 Conn., 93, 98. It is argued that the plaintiff’s fraud made the contract 'only voidable, and that it was too late for the defendant to avoid it on June 7th, when she knew all the facts as early as May 22d. "We cannot say that this delay was unreasonable as matter of law, and it was not found by the trial court to have been 'unreasonable in fact. The plaintiff contends that his fraud was immaterial, because it does not appear that the defendant sustained any damage from it. It is enough that it does appear that the fraud was intended to induce her to execute the contract, and that it had that effect. The plaintiff cannot ask the court to help him to profit by his own wrong. But the defendant was not bound to prove damage. A man has a [401] right to choose whom he will employ.’ The reputation of a manufacturer or merchant may give a value to his goods which is quite independent of their actual quality. An order from A cannot be changed into an order from B without the buyer’s consent. There is no error in the judgment appealed from. In this opinion the other judges concurred.