[225 N. Y.] Statement of case. [Jan., proved an oral contract, whereupon the defendant proved by him his signature to a writing in form a contract set forth in the answer. Plaintiff's testator testified that after the oral contract had been completely made he handed defendant's representative his list of varieties of trees he wanted, and defendant's representative wrote down the varieties, calling them as he wrote them, and handed the order to the witness to sign, who, because he had not his glasses, could read nothing of the writing and so stated to the representative, who said that it contained nothing but a statement of the varieties and the sizes and prices and time of delivery. In fact it differed materially from the oral contract. Plaintiff's testator thereupon signed it. This testimony was taken under the objection of the defendant that it was incompetent, that the writing was the best evidence of the contract and that no fraud was alleged in the complaint, and under an exception to the adverse ruling. The court, in effect, submitted to the jury the questions: (a) Was the testator bound by the written order, notwithstanding that he did not read it, or did the conditions justify him in signing it without reading it; (b) did the writing or the oral agreements constitute the contract; and charged that if the writing constituted the contract the plaintiff could not recover; if the oral agreements constituted the contract the plaintiff could recover the damages resulting to the testator from its breach. The verdict was for plaintiff. Held, that the evidence of the oral contract was properly received, and that upon the facts found by the jury the writing was void at law. The contract was not susceptible of rescission and there was no reason for its reformation. (Wilcox v. American Tel. & Tel. Co., 176 N. Y. 115; Smith v. Run, 191 N. Y. 452, followed.) Whipple v. Brown Brothers Co., 170 App. Div. 531, affirmed. (Submitted October 22, 1918; decided January 7, 1919.) APPEAL from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 24, 1915, affirming a judgment in favor of plaintiff entered upon a verdict. The nature of the action and the facts, so far as material, are stated in the opinion. P. Chamberlain for appellant. The court erred in receiving evidence tending to prove fraud. The action being for breach of contract it could not be changed into 1919.] Opinion, per COLLIN, J. [225 N. Y.] one for fraud. (Dalrymple v. Hillenbrand, 62 N. Y. 5; Stumpf v. Cohen, 78 Misc. Rep. 158; Tanenbaum v. Fed. Match Co., 189 N. Y. 75; Lindsay v. Mulqueen, 26 Hun, 485; Townsend v. G. Ins. Co., 39 Misc. Rep. 87; Hartman v. Mayor, etc., 23 Hun, 586; Northam v. Dutchess Co. Mut. Ins. Co., 77 N. Y. 73; McComb v. Brewer Lumber Co., 184 Mass. 276; Kipp v. N. Y. C. & H. R. R. R., 89 App. Div. 392; Schoepflin v. Coffey, 162 N. Y. 12; Korn v. Weir, 88 N. Y. Supp. 976; Blumenfield v. Stine, 42 Misc. Rep. 411.) The court erred in admitting testimony as to dealings had between the alleged agent, Mull, and Mr. Sherwood. (McKeige v. Carroll, 120 App. Div. 521; Ellenor v. Briggs, 39 Misc. Rep. 535; Oppenheim v. Irvin, 166 App. Div. 233; Wait v. Borne, 123 N. Y. 592; Smith v. Tracy, 36 N. Y. 79.) Parol evidence was L. M. Sherwood for respondent. competent to prove that the signature of the plaintiff to the instrument was procured by fraudulent representations, and if so, the instrument was void. (Wilcox v. Am. T. & T. Co., 176 N. Y. 115; Smith v. Dotterweich, 200 N. Y. 299; Burrows A. Mach. Co. v. Van Dusen, 138 N. Y. Supp. 839; 19 N. Y. Supp. 951; Wells v. Yates, 44 N. Y. 531; Albany Sav. Bank v. Burdick, 87 N. Y. 40; Peary v. Manhattan Elev. Ry. Co., 56 Misc. Rep. 599; 139 N. Y. 643; E. A. Machine Co. v. Greenberg, 56 Misc. Rep. 514; Van Alstyne v. Smith, 83 Hun, 382; Kitchener v. Home Sewing Mch. Co., 135 N. Y. 182; Philips v. Gorham, 17 N. Y. 270; Smith v. Ryan, 191 N. Y. 452.) COLLIN, J. The action was to recover the damages sustained by Watson H. Whipple, the plaintiff's testator, through the breach by the defendant of a contract between them. The complaint alleged the contract, its making and breach and the damages of the plaintiff, in amount $1,600. It did not disclose whether the contract was oral or written. The answer denied the contract and alleged another contract and performance of it by the defendant. It is, of course, true that the allegations in the answer of new matter are to be deemed controverted by the plaintiff. (Code of Civil Procedure, section 522.) The issue thus created was: Did the parties make the contract set forth in the complaint or did they make that set forth in the answer. The testimony of Whipple (who was living at the time of the trial) proved the oral contract set forth in the complaint. The defendant, while Whipple was testifying as a witness in his own behalf, proved the signature of Whipple to a writing in form the contract set forth in the answer. Whipple testified: after the oral contract had been completely made, the representative of the defendant "took out his order book and I handed him my list and he wrote down the varieties (of trees), calling them out as he wrote them," and handed the order over to Whipple to sign; Whipple, because he had not his glasses, could read nothing of the writing and so stated to the representative, who stated that it contained nothing but a statement of the varieties and the sizes and prices and time of delivery. Whipple thereupon signed it. Such statement was not the entire of either the oral contract or of the writing. This testimony was taken under the objection of the defendant that it was incompetent, the writing was the best evidence of the contract, no fraud being alleged in the complaint, and under an exception to the adverse ruling. Under the writing the plaintiff could not maintain the action. The issue tried was, was the oral agreement or the contents of the writing the real contract. The court, in effect, submitted to the jury the questions, (a) was Whipple bound by the written order, notwithstanding that he did not read it, or did the conditions justify him in signing it without reading it; (b) did the writing or the oral agreements constitute the contract; and charged 1919.] Opinion, per COLLIN, J. [225 N. Y.] that if the writing constituted the contract the plaintiff could not recover; if the oral agreements constituted the contract the plaintiff could recover the damages resulting to the testator from its breach. It is manifest, therefore, that the recovery was because of the breach of the oral contract and not because of the defendant's fraud. The verdict was in favor of the plaintiff. The appellant asserts and argues here that, the cause of action being founded on an express contract, fraud could not be proven without being alleged in the complaint. Fraud was not a constituent of plaintiff's alleged or proven or submitted cause of action. The question was, did the stipulations of the written order constitute the contract. The jury were instructed that if the oral agreements were the contract the plaintiff could recover, if the evidence exonerated Whipple from negligence in signing the writing; if the writing constituted the contract the plaintiff could not recover. I think there was not error in this or in receiving the evidence of plaintiff that his signature to the writing was obtained, without negligence on his part, through deceit. Under the evidence of Whipple the writing did not express the agreement of the parties. Whipple did not execute and deliver it with a contracting mind, and at the common law it was subject to the plea of non est factum. There is a material and manifest distinction between a meeting of the minds of parties through deceit on the part of one of them, and a writing excusably and justifiably executed by the one which, through the deceit of the other, does not express the agreement of the parties. The distinction has been expressed thus: "Fraud in the factum renders the writing void at law, whereas fraud in the treaty renders it voidable merely." In Page v. Krekey (137 N. Y. 307, 311) the action was upon a guaranty signed by the defendant. The court said: "In deter [225 N. Y.] Opinion, per COLLIN, J. [Jan., mining the legal effect of this paper, and the obligation thereby created against the defendant, we must assume that he signed it when intoxicated, that he was unable to read it, that he was ignorant of its contents, and that he fixed his signature to it upon the false representation that it was an application for a license. There can be no doubt that, as between the parties to this transaction, the instrument was void. It was also invalid in the hands of any person who received it with knowledge or notice of the circumstances under which the defendant's signature was obtained." In Trambly v. Ricard (130 Mass. 259) the action was for the conversion of furniture. Plaintiff alleged and proved the acts of conversion. The defendants, in justification of their acts, relied upon an alleged breach by the plaintiff of a conditional bill of sale. Plaintiff thereupon gave proof that the sale was absolute and that immediately after the oral agreement of absolute sale was made the defendants requested him to sign the written contract, which he did, supposing the same to contain the terms and stipulations of the oral agreement. The court said: "In the absence of fraud or imposition, it is presumed that the terms of a written contract were known and assented to by the parties who signed it; that they either read it, or were informed of its contents, or were willing to assent to its terms without reading it. This presumption is not defeated by showing that the contract signed was different from that which one or the other supposed he was signing. It is not permitted to show that another contract was the real contract, because the parties have chosen to put their agreement in writing, as the better way to preserve its terms, and parol evidence cannot be admitted to vary it. But this familiar rule does not exclude evidence which tends to show that the written contract was by some fraud or imposition never in fact freely and intelligently signed by the party sought to be charged. It |