Construction Reporter Co. v. Crowninshield

The parties entered into a contract in writing whereby the plaintiff agreed to furnish certain trade information to the defendant, and the latter promised to pay $50, quarterly, therefor. At the commencement of the second quarter the payment was not made, and this action was brought to recover the amount then claimed to be due in advance. Two defenses were litigated,—one as to the entirety of the contract, and another based upon fraud of the plaintiff’s agent in inducing the contract.

While it is, without doubt, the province of the district courts to entertain the defense of fraud in an action upon a written instrument (Estelle v. Dinsbeer, 9 Misc. Rep. 485 , 30 N. Y. Supp. 226 ), and while parol evidence to prove the fraud is not open to objection under the rule excluding such evidence to vary the terms of the contract (Smith v. Harris, 7 N. Y. St. Rep. 479 ), yet here the proof showed only misrepresentation as to the future details of the performance of the contract, and hence there was no fraud shown such as could avoid the agreement (8 Am. & Eng. Enc. Law, 637, and cases cited; Kley v. Healy, 9 Misc. Rep. 93 , 29 N. Y. Supp. 3 ). The justice below distinctly ruled that proof of these misrepresentations was proper, and that, if proven to his satisfaction, he would relieve the defendant from what clearly appears to have been viewed as actual fraud, although, throughout, it was understood that the misrepresentations were of future intentions, and not of existing facts. The record does not affirm that the judgment for the defendant was not wholly or in part based upon the incompetent evidence hereinbefore alluded to, and for the error of

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event.