1919.] Opinion, per COLLIN, J. * * * [225 N. Y.] may always be shown that he was not possessed of the requisite capacity, or that his signature was obtained by fraud. A party who is ignorant of the contents of a written instrument, from inability to read, who signs it without intending to, and who is chargeable with no negligence in not ascertaining the character of it, is no more bound than if it were a forgery. There has been no intelligent assent to its terms, and it is a fraud in one who with knowledge of the fact attempts to enforce it." This case is cited with approval in O'Donnell v. Inhabitants of Clinton (145 Mass. 461); Freedley v. French (154 Mass. 339); Bliss v. New York Central & H. R. R. R. Co. (160 Mass. 447); Larsson v. Metropolitan Stock Exchange (200 Mass. 367). In Eldorado Jewelry Co. v. Darnell (135 Iowa, 555) the defendant signed an order for the purchase of certain jewelry and upon this was sued for the price. When he signed the order he was without glasses, which had been broken, and could not read the order. He supposed that it was merely a contract under which he was to receive the goods as the property of plaintiff and dispose of them on commission with the obligation only to remit a percentage of the proceeds. The court said: "It is conceded that, if the order was voidable merely, as when procured by fraud, defendant had his election to rescind and refuse to accept the goods, or accept them and recoup in damages; but if, under the finding of the jury, the order was void, rescission was unnecessary to defeat plaintiff's claim. To render the order void, it must have been signed by mistake; that is, under the supposition that it was an instrument of another or different character. This would be no less a mistake because induced by fraud. The distinction should be kept in mind, for an agreement procured by fraud is voidable merely, while one signed by mistake is no agreement at all. As said, the jury might have found that the defendant * [225 N. Y.] Opinion, per COLLIN, J. [Jan., in signing the order was not negligent, as he was a man of advanced years, without his glasses, which had been broken, and could not read the instrument signed, which was long and in small type. The jury might also have found that he signed the same under a mistaken supposition that it was merely a contract under which he was to receive the goods as the property of plaintiffs, and dispose of them on commission, with the obligation to remit a percentage of the proceeds only. If so, executing the order was by a mistake, and the instrument utterly void. This must be so, for in such a case the minds of the parties have never met." In Cummings v. Ross (90 Cal. 68) the facts, so far as the point under consideration is concerned, were the parallel of the facts in the case at bar, as will appear from the following quotation from the opinion: "It is further contended that the court below erred in allowing the plaintiff to show that a certain written contract introduced by defendant was signed by the plaintiff, through the misrepresentation of the defendant, and that the plaintiff had never intended to sign that contract, but supposed he was signing one which had before that been drawn up in lead-pencil. The action was brought on a contract such as the lead-pencil draught contained, and the defendant, in the answer, denied the performance of the contract as sued on. When he introduced the written contract to show the real nature of the transaction as he claimed, it was competent for the plaintiff, in support of the issue made, to show that in point of fact he had made no such contract as defendant had brought forward in evidence. One cannot be made to stand on a contract he never intended to make. If the defendant had sued the plaintiff, and sought to charge him on such a contract, it would certainly be competent, in defense, to show that the instrument was fraudulent." I have referred to these decisions, by the quotations, 1919.] Opinion, per COLLIN, J. [225 N. Y.] to make clear that the principles declared by us in Wilcox v. American Telephone & Tel. Co. (176 N. Y. 115) and Smith v. Ryan (191 N. Y. 452) are of general application. Those principles as stated by Chief Judge CULLEN are: "There are two kinds of fraud which differ essentially in their character; in the one the grantor is induced to convey his property by fraudulent representations as to the value, nature or character of the consideration he receives for the conveyance. This is sometimes called fraud in the consideration. In the other case the grantor is deceived into the execution of an instrument of the contents of which he is ignorant. This is sometimes called fraud in the execution of the deed. The distinction between the two cases lies just here. It is elementary law that the assent of the parties is necessary to constitute a binding contract. In the first case the assent of the party though obtained by fraud is, nevertheless, obtained not only to the execution of the instrument, but to the contract which it evidences. In the second case there is procured only the signature to and execution of the written instrument, but not assent to the contract therein stated. In cases of this latter class the deed can be avoided at law." "Thus, for example, reading a deed falsely to an illiterate person, whether it be so read by the grantee or by a stranger, avoids it as to the other party at law." (Smith v. Ryan, 191 N. Y. 452, 457.) The practice adopted by the plaintiff was entirely proper. He was not obliged to appeal to a court of equity for relief against the deed, but when it was set up to defeat his claim he could avoid its effect by proof of the fraud by which it was obtained (Kirchner v. New Home Sewing Machine Co., 135 N. Y. 182)." (Wilcox v. Am. Tel. & Tel. Co., 176 N. Y. 115, 118.) (See, also, Lotter v. Knospe, 144 Wis. 426; Biddeford National Bank v. Hill, 102 Me. 346; Black v. Wabash, St. Louis & Pacific Railway Co., 111 Ill. [225 N. Y.J Opinion, per CRANE, J. [Jan., 351; Warder, Bushnell & Glessner Co. v. Whitish, 77 Wis. 430; Alexander v. Brogley, 63 N. J. L. 307.) The writing in the case at bar lacks the element of mutual assent. It does not express the result of the meeting of the minds of the parties. It is a mere fiction, a nothing or a something which becomes nothing the instant the proof of the deceit under which the signature was made is given. Whipple did not and could not sue upon the writing. Under his proof it was void at law the same as if it never had been. It, as a contract, was not susceptible of rescission and there was not a reason for its reformation. The plaintiff controverted its existence as a contract and he had the right by evidence to sustain the controversion. The judgment should be affirmed, with costs. CRANE, J. (concurring). Through the defendant's agent the plaintiff ordered certain peach trees of a specified name and variety. The nature of the peach tree business is such that the kind of fruit which will grow upon the tree cannot be definitely determined until about three years after planting. The order was reduced to writing by the defendant's agent and the plaintiff's signature obtained upon the assurance that the alleged contract was in accordance with the previous oral understanding. As the plaintiff did not have his spectacles with him at the time he did not read the contract, relying upon this representation of the seller. The trees received from the defendant in the natural course of time proved to be different from those ordered and much less in value. The purchaser brought action against the seller for his damage. It then turned out that the contract which he had signed was not in accordance with the oral agreement as it contained a limited warranty about which nothing had been said. He was deceived by the agent into signing a written paper to 1919.] Opinion, per CRANE, J. [225 N. Y.] the contents of which he had never assented. The action, having been brought upon the oral agreement, the defendant pleaded the written contract and upon the trial objected to any evidence which attempted to vary it. The defendant claimed that the plaintiff was bound by the writing and could not in this action prove it to be void for fraud and recover upon the oral arrangement. The trees, it was admitted, were not the kind ordered, and the plaintiff's damage was satisfactorily proved. The court admitted evidence of the fraud and held that if this were established the plaintiff was not bound by the writing. The question apparently raised by this appeal from a judgment against the defendant is whether the plaintiff can sue at law upon his oral agreement with the agent and prove when confronted in pleading and upon the trial with the alleged writing that it was not a contract as he was deceived into signing a paper other than that intended by the parties. Or must he resort to equity to reform the writing by having the limited warranty stricken out. My associates have divided on these propositions. I am convinced that the courts below have applied the law as it has found expression in the authorities. It must be conceded that if the paper were a forgery the plaintiff could sue at law upon the oral agreement and prove the forgery when the alleged contract was produced to bar his claim; so also if his signature were genuine, but he signed it upon the representation that the paper was something other than a contract, for instance, a receipt or a permit. There would be nothing in these instances to reform. If the writing purports to be a contract, but, by the fraud of one, is materially different than the parties have agreed to, is this any more binding than the forgery or trick paper? To what have the minds met to form a contract? Had the writing in this case by deception |