author: Bosworth, J.

text:
    Hovey and others v. American Mutual Insurance Co.
    (Before Duer, Campbell, and Bosworth, J.J.)
    December 23;
    December 31, 1853.
    The policy of insurance, on which the action was brought, contained a provision, that, in case of any loss or damage by fire, to the property insured, the plaintiff should forthwith give notice thereof to the defendants.
    The complaint averred that the property insured was destroyed by fire on the 20th of May, 1852; and that as soon as possible thereafter, that is to say, on the 24th May, 1852, the plaintiffs gave notice thereof to the defendants.

      Held, that the plaintiffs were not precluded by the terms of their complaint from showing on the trial that the proper notice was given on the morning of the 21st May; and

      Held further, that this notice satisfied the provision in the policy.
    The policy bound the plaintiffs to keep and maintain a night-watch on their premises during the continuance of the policy.

      Held, that evidence offered by the defendants upon the trial, of a parol agreement that the night-watch employed by the plaintiffs should have the care and watching of no other premises at the same time, was properly rejected.
    The defendants, upon the trial, required the judge to charge, that the employment of a person as a night-watch, whose duty was in any manner divided by an employment to watch other premises, was not a fulfilment of the condition in the policy.
    The judge refused so to charge, but charged the jury that if the night-watch employed by the plaintiff was employed to act exclusively upon their premises, and was a competent and proper person to be so employed, and did keep exclusively on the plaintiffs’ premises in the faithful discharge of his duty, and the plaintiffs were ignorant of any engagement made by him with other persons, then the mere facts that he had made such an engagement, and had rendered services under it, would not be a bar to the plaintiffs’ recovery.

      Held, that the refusal of the judge to charge as required, and the charge which he actually gave, were correct.
    The jury having found the facts submitted to them in favor of the plaintiffs,

      Held, that their judgment could not be disturbed.
    Motion, on the part of the defendants, for a new trial, upon exceptions, and also upon the ground that the verdict was against evidence.
    The action was upon a policy of insurance against fire, and was brought to recover the sum of $2,500, which was alleged to be the amount of the loss which the plaintiffs had sustained, by reason of the destruction, by fire, of the property insured. The plaintiffs carried on business under the name of the “Williamsburgh Oil Company,” and the insurance was on their stock of raw materials, as oil manufactures, manufactured oils, bright varnish, and oil cakes, contained in the shed and yard, and on the stock of said company, situate, &e., Williamsburgh, Long Island.” The policy stated, inter alia, that it was understood and agreed between the parties, “ that there should be a night-watch upon the premises during the continuance of the policy,” and also that, in case of any loss or damage by fire, the plaintiffs should forthwith give notice thereof to the defendants.
    The complaint was in the usual form, averring the execution and delivery by the defendants of the policy, its substance and conditions, the destruction by fire of the property insured, the amount of the loss, and that due notice and proof thereof had been given to the defendants.
    The answer admitted the execution and delivery of the policy and the happening and amount of the loss, as set forth in the complaint, and set up as defences; First, That the plaintiffs did not, as they averred in their complaint, and as they were bound to do by the terms of their contract, notify the defendants forthwith of the loss and fire, but, on the contrary, had failed to give to the defendants any notice whatever of the fire, until several days after its occurrence; Second, That the plaintiffs had not at all times, during the continuance of the policy, kept and maintained a night-watch upon the premises described therein, containing the property insured, as they had stipulated and agreed to do by the said policy.
    Upon these issues the cause was tried before Boswoeth, J., and a jury, in June term, 1853. The following were the proceedings on the trial.
    The plaintiffs, to prove the issue on their part, offered in evidence the policy of insurance, and the same was read to the jury, being the same policy recited in the plaintiffs’ complaint.
    The plaintiffs, further to prove the issue on their part, called as a witness,

      Peter Pierce, who, being duly sworn, testified as follows: I was in the employ of the plaintiffs in the month of May, 1852, as general superintendent, and was on the premises in question at the fire, on the night of the 20th of May. I went into Mr. Edwards’s office (he being the defendants’ agent), on the morning of the 21st day of May, 1852. Here the counsel for the defendants interrupted the witness, and asked the plaintiffs’ counsel what he designed to prove by him as having taken place on the 21st of May, 1852, at the office of defendants’ agent, to which the counsel for the plaintiffs replied that he expected to prove the notice to the defendants of the •occurrence of the fire the day following the occurrence. To this the counsel for the defendants objected, on the ground that the complaint averred that the first notice to the defendants of the occurrence of said fire was given on the 24th day of said May, and the insufficiency of the notice set forth in the complaint was relied upon in the answer of the defendants as one of the grounds of defence. The court overruled the objection to the admissibility of this evidence, and the defendants’ counsel duly excepted to the said decision of the court, and the exception was duly noted. The witness then proceeded. “ Mr. Edwards was not in. I asked if that was the agency of The American Mutual Insurance Company. The clerk said, yes. I then asked if the Williamsburgh Oil Factory was insured in their office. The young man turned to the books and said, yes. I then asked him the amount, and told him of the fire the night previous. On the 24th, I gave written notice of the loss to Edwards, and also sent notice to the company at Amsterdam. I came into the employ of the plaintiffs, January 10,1852. Mr. Paige was in their employ when I came, and continued some time after. When I went into the employment of the plaintiffs, Mr. Bond was the night watch, and remained there in that capacity till the 1st of March, and then his son went to Brooklyn, and the old man with him. Then Mr. ¡Newton hired Patrick Mead, who remained until after the fire. There was a night watch from the time I went into their employ. He, as well as Bond, is an honest, intelligent, and proper man for a night watch. Mead was paid four dollars a week. Bond was paid four dollars a week.
    Upon being cross-examined, the witness testified: “I am not now employed in the oil factory, but am engaged for myself in the paper business. I remained in the plaintiffs’ employment until the end of the month after the fire. The plaintiffs are not now in business anywhere. I did not state that I was unable to find the office of the defendants after the fire; it was another office that I stated I was unable to find. Mr. Bond was employed to remain on the premises during the night hours. I do not know of his sons sleeping there. Mr. Mead was hired at the yard. I was not present when the bargain was made. I examined" his recommendations. Don’t remember whose they were. He was watching a ship in New York at the time he came. He had quit the ship and was out of employment. Mr. Newton hired him.”
    And further to prove the issues on their part, the plaintiffs called as a witness,

      Madison Page, who, being sworn, testified as follows: I was in the employment of the plaintiffs at the date of the policy, and acted for them in obtaining it. I had then been in their employment five months. I put a night watch on the premises on the 19th of June, the date of the policy, and continued the same up to February, 1852. He was a good, faithful watch; his name was Bond. The duties of a night watch are to be on the ground at six o’clock in the evening, and remain till seven in the morning. This was performed, I think faithfully, up to February, 1852.
    "Upon being cross-examined, the witness testified: Mr. Bond had a son who slept on the premises. Mr. Hovey desired me to have one of the workmen sleep on the premises to keep the watchman company.
    And further to prove the issue on their part, the plaintiffs called as a witness,

      Charles H. Newton, who, being sworn, testified as follows : I went into the plaintiffs’ employment on the 13th of September, 1851, and continued with them until after the fire. There was a night watch there when I went, and he continued till the 1st of March. His name was Bond. The night Bond left I watched, and I put Patrick Mead as night watch there the following night, who continued there up to the time of the fire, and was there that night. His business was to look around the yard. He was to go on the premises at six in the evening, and remain till seven in the morning. I supposed him a competent man. He brought good recommendations from a captain in ¡New York. We paid him four dollars a week. So far as I know he performed Ms duty well. I was there sometimes in the night myself.
    Upon being cross-examined, the witness testified: ¡M¡r. Mead was not in any one’s employment when I employed him, as he said the last person for whom he was employed was the captain. He brought a recommendation from him. I did not know this captain, but I thought I knew enough of Mead before. He was formerly employed in the yard of Perrine, Patterson, and Stack. I did not go there to inquire about him. I should think it was a month before that I saw him occasionally at the yard of Perrine, Patterson, & Stack.
    The amount of the damage by the fire to the property insured being admitted to be as the same is averred in the complaint, the plaintiffs’ counsel here rested.
    And the defendants, to prove the issue on their part, called as a witness,

      William Perrine, who, being sworn, testified as follows: I am one of the firm of Perrine, Patterson & Stack. I know the premises of plaintiffs. Our premises are contiguous, in the same block below, and in the next block above. I know Patrick Mead. He is now in court. He is in our employment as a night watchman. He has been in our employment as such since 1849 or 1850. He was at our yard as our night watch in March and April, 1852. I am not sure that he was in our employ in March. We built the “ John Stewart.” Mead was liked by the captain. We allowed Mm to go to accommodate the captain. I can’t tell when he came back. We allowed him $10 a month until we got more to do ; since then we have paid him $1 per night. He was in our employment, at the yard of Perrine, Patterson & Stack, at the time of the fire, which consumed the oil factory. We paid him ten dollars a month. His duties were to go round and he walking about our premises from about half past 5 p.m. until about 7 a.m., when he was relieved by the day watch. I have no knowledge of the employment of Mead at other premises, but I believe Mr. Stack consented, on account of the small wages we were then paying him.
    Upon being cross-examined, the witness testified: As soon as we got two or three vessels on the stocks, I think about the first of July, we raised Mead’s wages. The plaintiffs’ premises are in sight from ours. To go into our saw-yard, or to look into it, the watchman was obliged to go around the buildings. We had ;no other night watchman on our premises than this man Mead. When he was watching the ship in Mew York, we had but one vessel just going up, and had but little necessity for a watch. I don’t know that I saw Mead away from the plaintiffs’ yard any one night. The reason why we paid him at the time such” low wages, was that we then had but one vessel to watch. The ordinary wages of a night watchman are six dollars a week in the summer, and seven in the winter. I can’t recollect whether I saw Mead on the plaintiffs’ premises or my own from April 1st to the time of the fire.
    And the defendants, further to prove the issue on their part, called as a witness,

      Alfred Edwcm'ds, who, upon being sworn, testified as follows: I was the agent of the defendants when the policy was made, and made the contract with Mr. Paige.
    The counsel for the defendants here offered to prove by this , witness the conversation had between the parties at the time of making the policies, as to the night watch to be kept on the premises; and that, by the express terms of the agreement, the “night watch,” employed upon the premises -bv the plaintiffs, was to have the care and watching of no other premises at the same time, but that' he was to be the exclusive night watch of the plaintiffs, upon their premises. To this the counsel for the plaintiffs objected, and the said objection was sustained by the court, and said evidence was not admitted; to which decision of the court the counsel for the defendants did then and there except, and said exception was duly noted.

      The defence here rested.
    And the plaintiffs, further to prove the issue on their part, recalled the witness,

      CJvwies H. fflewton, who testified as follows: I was never informed that Head was employed by any one else as night watchman. When he was employed by the plaintiffs I never heard him say anything about his wages.
    And further to prove the issue on their part, the plaintiffs recalled

      Pierce, who testified as follows: I did not know of Head’s being employed elsewhere, at the time he was employed by the plaintiffs.
    And further to prove the issue on their part, the plaintiffs recalled as a witness,

      Patrick Mead, who, upon being sworn, testified as follows: I was employed by the Williamsburgh Oil Factory, as night watchman, and was there at the time of the fire. I was never off the premises one night. I was in Hr. Stack’s employ three- or four years. I told Stack I was employed by the oil factory. The captain asked me to watch the ship. After I left the ship, Newton employed me for the oil company. He told me to keep an eye on their yard when I was going backward and forward, and he would make it all right with me. Hy boy could look out for Stack’s place. It did not prevent my doing my duty. I always kept on the ground of the oil factory.
    And upon being cross-examined, the witness testified: The vessel was nearly built in Hr. Stack’s yard, at the time of the fire at the oil factory. They had no other night watchman at the shipyard besides myself. I agreed to -watch the premises going back and forward. I did not go into Stack’s yard. I could see Perrine’s yard without going off the premises. There was no other man but myself to watch the ship then nearly finished. I never told Newton or Pierce anything of my employment by Perrine & Stack. I could see over the fence almost all the way. I used to look over the fence. I could get on barrels and look over it.
    Here the case rested, and counsel on either side summed up, and the court then proceeded to charge the jury.
    The counsel for the defendants requested the court to charge the jury as follows. .
    1st. That the obligation of the plaintiffs to keep a night watch on the premises during the continuance of the policy was a condition precedent to the liability of the defendants, and to entitle the plaintiffs to recover, they must prove a literal performance of that condition.
    2d. That proof of the employment of a person as a night watchman, whose duty was in any manner or to any extent divided by an employment at the same time to watch other premises, is not such proof of the performance of the condition as the law requires, and is insufficient to entitle the plaintiffs to recover in this action.
    Upon the first point the court charged the jury according to the request of the defendants’ counsel, but refused so to charge upon the second point. But the court charged the jury, that if they found upon the evidence that the plaintiffs employed Meade to act exclusively as a night watch upon the premises in question, and that he was a competent and proper person to be employed for that purpose, and that he did keep exclusively on the plaintiffs’ premises in the faithful performance of his duties as night watch, and they were ignorant of the engagement which he had made to Perrine, Patterson & Stack, then his having made the engagement with them which he testified he made, and having rendered for them only such services as he testified he rendered, would not be a non-compliance with the condition which would preclude a recovery by the plaintiffs in this action.
    And to such refusal of the court, and to the said charge of the court, the defendants’ counsel then and there excepted, and the exception was duly noted.
    Under this charge, the jury found a verdict for the plaintiffs for $2,650.
    The case made to set aside this verdict was now submitted by the counsel of the parties.

      T. W. Tucker, for plaintiffs.
    I. Evidence of conversation between the parties, at the time of making the policy, and óf an oral agreement different from that expressed in the policy, was inadmissible, and properly excluded. (1 Greenleaf Ev. § 275-281.)
    II. There was no proof that the duty of the night watchman employed by plaintiff was in any way divided by any other employment.
    III. The charge of the judge was correct.

      F. H. Upton, for defendants.
    I. The court erred in allowing the plaintiff to prove notice to the defendants, of the occurrence of the fire the day following its occurrence, and in overruling the objection of the defendant’s counsel to said evidence. The complaint avers—first, the obligation of the plaintiffs by the terms of the contract, to notify the defendants “ forthwith” of any loss or damage by fire to the property insured—and “ as soon thereafter as possible,” to deliver to them a particular account of the' same. Secondly, that the fire occurred on the 20th of May, 1852; and thirdly, that on the 24th day of May, they gave notice of the fire to the defendants. The answer of the defendants denies that the plaintiffs notified them “ forthwith” of the occurrence of the fire, as they were bound to do by the contract. Here was an issue between the parties, of fact or of law, as it should appear at the trial—of law, if it should be contended that a notification four days after the fire, was a notification “ forthwith,” within the legal construction of the contract between the parties—of fact, if the plaintiffs should prove facts or circumstances tending to show the impossibility of giving notice at an earlier period. The defendants came to the trial prepared to meet the issue, upon the averment of the, complaint that notice of the fire which occurred on the 20th was given on the 24th. But the plaintiffs were allowed to prove, in direct variance from their averment, that notice was given on the 21st,—and the defendants were thus deprived of all opportunity of showing the contrary by proof, which they might otherwise have produced. The plaintiffs, even at the trial, would undoubtedly have been allowed to amend their complaint, upon motion, by averring notice on the 21st; but.in such case, the motion would, of necessity, have been granted upon terms, and such terms at least as would have given the defendants an opportunity to meet the averment. ISio such amendment was made, nor was there any motion to that effect, and the complaint now stands with the allegation, that notice of the occurrence of the fire, which took place on the 20th of May, was given to the defendants on the 24th, and the plaintiffs were allowed to prove, without amendment, that notice was given on the 21st. This was a most material variance, affecting the substantial rights of the defendants, not a mere matter of form. A notification “ forthwith ” by the assured to the insurers of the occurrence of a fire, is one of the most important and imperative conditions of the contract of insurance. It is inserted in all policies of Fire Insurance, and is essential for the protection of the rights and interests of the underwriters. In the first place, it enables them immediately after the occurrence of a fire, and while everything is fresh in the recollection of the witnesses or persons in the neighborhood, to institute the requisite inquiries into its causes, and obtain facts in reference thereto, which may tend to exonerate them from all liability. The delay of a day or two, to give the notice in a community like this, is sufficient oftentimes to defeat the very purpose of its requisition. In the second place, the notice “ forthwith,” enables the underwriters to take measures for the preservation of their interests in the seasonable care and custody, and restoration of such of the property insured as might be saved from the elements, and thus by their own vigilance, converting into a partial, what might otherwise be a total loss. In this view of the true interest and meaning of this most important condition of the contract, it has been repeatedly decided that a notification “ forthwith,” means “ immediately,” “ directly,” “ without delay,” and that where it is not made immediately, directly, and without delay, and no circumstances are proved, the existence of which rendered the delay unavoidable, and therefore excusing it—no liability on the part of the underwriters can be predicated upon such notice. (Inman v. Western Fire Ins. Co., 12 Wendell, 452, and cases there cited.)
    II. The court erred in refusing to allow the testimony of the defendants’ agent of the conversation between the parties at the time when the contract was made, as to their precise meaning in the condition inserted in the contract, “ to keep a night-watch upon the premises.” That this condition, as expressed in the policy, is not sufficiently obvious and unambiguous upon the face of the policy, is apparent, as well from the language? as from the fact that much testimony was given at the trial on either side, without objection, explanatory of its meaning, and of the peculiar duties of a night-watchman. This being the case, was not the very best evidence of the true intent and meaning of the condition, the conversation of the parties at the precise time when the stipulation was made and the clause inserted ?
    IIÍ. The court erred in charging the jury, that “ if they found upon the evidence that plaintiffs employed Head to act exclusively as a night-watch upon the premises in question, and that he was a competent and proper person to be employed for that purpose, and that he did keep exclusively on the plaintiff’s premises, in the faithful performance of his duties as night-watch, and they were ignorant of the engagement which he had made to Perrine, Patterson, and Stack—then, his having made the engagement with them, which he testified he made, and having rendered for them only such service as he testified he rendered, would not be a non-compliance with the condition which would preclude a recovery by the plaintiff in this action. 1. It is conceded, and the court so charged the jury? that the condition of the contract on the part of the plaintiffs to keep a night-watch upon the premises, was a condition precedent. A literal compliance with this condition is, therefore, necessary to entitle the plaintiffs to recover—a substantial compliance is wholly insufficient—and whether the loss was in any way attributable to, or connected with the failure to make literal compliance with the condition, is quite immaterial and can- . not be inquired into. 2. It is conceded, as the charge of the court intimates, that the compliance with this condition by the plaintiffs, required their employment of a competent person to watch their premises exclusively. This is obviously the true construction of this most important condition. The property insured was of such a combustible character as to require constant and unremitting attention in the night-time—without an express stipulation for such an attention and watching exclusively of this property, the underwriters would not have entered into any contract of insurance at all. Now, if the person employed by the plaintiffs to watch their property in the. night-time, was at the same time, and for the same sum, employed to watch the neighboring property, in the night-time, it is certain that he was not a night-watch exclusively for the plaintiffs’ property; and although he might have been continually on some part of their premises, at whatever distance from the point at which danger was most to be apprehended, yet, if by his engagements, it was equally his duty to watch the adjacent ship-yárd, it is obvious that he had a divided duty, and that he was not a night-watch of the premises of the plaintiffs exclusively, and therefore, however faithfully he might have performed his divided duty, the condition of the contract was not complied with. He was not the exclusive night-watch of the plaintiffs. The necessity imposed upon the watch by his divided engagements, might have been the actual cause of the loss. The fire might have kindled while his attention was directed in compliance with his duty towards the property of Perrine, Patterson & Stack, and although at the time he might have been strictly on the plaintiffs’ premises, yet he might have been, and if watching the ship-yard, he necessarily would have been, at such a distance from the spot where the fire broke out, as to render its extinguishment by him impossible (the property being highly inflammable in its nature), whereas, had he been near the point of danger, as he would have been, but for the division of his duty, he might have seen the first spark, in season to have saved the property. 3. The ignorance of the plaintiffs, that the night-watch employed by them was not watching their premises exclusively, surely furnishes them with no legal excuse for a non-compliance with the condition of the contract. In other words, the plaintiffs’ ignorance that their watchman was employed by others to watch their property at. the same time that he was watching that of the plaintiffs, cannot constitute a literal compliance with the condition, which would'not have been literally complied with, but for that ignorance. But, is not this in effect the conclusion of the court? The judge says, “If the plaintiffs were ignorant of the engagements of their night-watchman, then his having made such engagements, and actually complying with them, would not be a non-compliance with the condition which would preclude the recovery by the plaintiffs. Is not this a declaration that the plaintiffs, so long as they act in good faith, and employ a person to watch their property exclusively, and innocently believe him to be thus employed, are not to be held responsible for the neglect or bad faith of their agents thus employed ? It is obvious, from the testimony of Mead, the watchman, that he kept his employment by Perrine, Patterson & Slack, carefully concealed from the plaintiffs. Why was this, but for the reason that he knew that by such an engagement he was violating his agreement to watch their property exclusively? Was not this bad faith on the part of Mead ? Had the plaintiffs known of his other engagement, and connived at it, or allowed it, will it be pretended that they could recover in this action, as upon proof of a literal compliance with this essential condition precedent of the contract ? It is conceded that they could not, by the terms of the charge of the court. Are they not then accountable for the bad faith of their agent ? and is their ignorance or innocence of this bad faith of their servant to be held to convert a manifest and admitted breach of the condition of the contract, into its literal compliance ?
   Bosworth, J.

The first point made on the appeal is, that the court erred in allowing proof that notice of the fire was given the day after its occurrence, and in overruling the objection of the defendants’ counsel to such evidence.

The policy required that the assured, on “ sustaining loss or damage by fire, should forthwith give notice thereof to the company.” The fire occurred in the night of the 20th of May, 1852. The complaint avers, “ that as soon as possible after said fire, that is to say, on the 24th of May, 1852,” the plaintiffs gave notice of the same to the defendants. The answer denies “ that the plaintiffs did, as they aver in their complaint, and as they were bound to do by the terms of said contract, notify them of said loss and of said fire, but, on the contrary thereof, they failed to give the defendants any notice whatever of said fire, until several days after its occurrence.”

It will be seen that the answer treats the complaint, as having, in substance, averred, that notice was forthwith given of the loss; denies the truth of such allegation, and affirms that, no notice whatever was given of said fire, until some days after its occurrence.

When the plaintiffs offered to prove that notice was given to the agent of the company, at their office in this city, where the policy was effected, on the morning of the 21st of May, the evidence was objected to. No objection was made as to the mode of giving it, or that it was not given at the proper place, nor that the notice given that morning was not sufficient, without other or further notice of the loss. The objection taken was, that the plaintiffs, by their complaint, had precluded themselves from proving that any notice had been given, except on the 24th of May. We think the particular objection made to the admission of the evidence untenable. The complaint averred, that notice was given as soon as possible, to wit, on the 24th of May. The answer treated it as an allegation that notice had been given forthwith, and denied that it had been given forthwith by the plaintiffs, “ as they aver in their complaint.” Not content with this, it proceeds to assert that, on the contrary, the plaintiffs failed to give the defendants any notice whatever of said fire, until several days after its occurrence.” The evidence objected to was directed to this averment, and tended to prove that notice was not only given as soon as possible, but forthwith.

No point was made that the notice actually proved was insufficient, if evidence of it was admissible under the pleadings. The court was not asked to charge the jury that the notice was given so late as to exonerate the defendants from liability, or that it was insufficient, in any respect. The only point made was, that it was not competent for the plaintiffs, tinder the pleadings, to prove that notice was given, on the morning after the fire. We think the objection was properly overruled.

The second point taken is, that the court erred in refusing to receive evidence of the conversation between the parties, at the time the policy was made, as to the night watch to be kept on the premises,—and that, by the express terms of the agreement, the night watch” was to have the care and watching of no other premises at the same time, but that he was to be the exclusive watch of the plaintiffs upon their premises.

The answer avers, “ that in and by the aforesaid contract or policy of insurance, it was stipulated and agreed that the plaintiffs should, at all times during the continuance of said policy, keep and maintain a night watch upon the premises described therein, and containing the property which was the subject matter of the said insurance,” and alleges that they did not do so.

The answer did not allege, that any agreement was made different from that evidenced by the policy. The defendants ■did not offer to prove, that by any established or known usage, the term night watch” was understood to impose any duties in addition to, or different from, those plainly indicated by the contract described in the policy, or by the natural meaning of the words by which it was described. If the object of the evidence was to vary the necessary legal effect, or the terms of contract, contained in the policy, it was properly rejected.

The only remaining point taken, brings under consideration the only part of the charge to the jury which was excepted to by the defendants.

The court charged as requested, that the obligation of the plaintiffs to keep a night watch on the premises during the continuance of the policy, was a condition precedent to the liability of the defendants, and to entitle the plaintiffs to recover, they must prove a literal performance of the condition. To charge as secondly requested, the court refused, but “ charged the jury- that, if they found upon the evidence that the plaintiffs employed Head to act exclusively as a night watch upon the premises in question, and that he was a competent and proper person to be employed for that purpose, and that he did keep exclusively on the plaintiffs’ premises, in the faithful performance of his duties as night watch, and they were ignorant of the engagement which he had made to Perrine, Patterson & Stack, then his having made the engagement with them which he testified he made, and having rendered for them only such services as he testified he rendered, would not be a non-compliance with the conditions which would preclude a recovery, by the plaintiffs in this action.” To this part of the charge the defendants excepted.

Mead testified that he was “never off the plaintiffs’ premises one night.” One of the firm of Perrine, Patterson & Stack told Mead “ to keep an eye on their premises, as he was going back and forward, and he would make it all right.” He “ agreed to watch the premises, going backward and forward.” He did not go into their yard. He could see in the yard without going off plaintiffs’ premises. He could see over the fence almost all the way. He could get on barrels and look over it. It did not prevent his doing his duty to the plaintiffs. He always kept on the ground of the oil factory.

This summary of Mead’s testimony, is his version of what he agreed to do, and did do, for Perrine, Patterson & Stack.

The jury have found that he was a competent night watch, that he was employed to act exclusively for the plaintiffs, that he kept exclusively on their premises, faithfully performed his duties, and that the plaintiffs were ignorant that he had agreed to occasionally look into another and adjoining yard, which could be seen from the yard of the plaintiffs.

It is contended that a warranty must be literally complied with. The warranty was that the plaintiffs, during the policy, would “keep and maintain a night watch on the premises.” They did keep and maintain one there every night, who, on no occasion, left the premises. They did not agree that he should never look off of them, or on no occasion be dozing or fall asleep. The spirit of the warranty is, that there should be a competent night watch kept there, and one who might be confided in for the faithful performance of a night watch.

The rule is said to be, that “ while on the one hand a literal fulfilment of the warranty is required, yet, on the other, it is no less certain, that nothing beyond a bare and literal fulfilment can be required. A warranty will not be extended, by construction, to include any thing not necessarily implied in its terms.”

Thus, in Hyde v. Bruce (3 Doug. 213), where there was a warranty, “ that the ship should have twenty guns,” and it appeared that, though in fact the ship had twenty guns, yet she had only twenty-five men, a number quite short of the necessary complement for twenty guns, Lord Mansfield held, that this'warranty did not imply that she should carry a competent number of men to work the guns, and, therefore, as there was no ground to impute fraud, the warranty had been sufficiently complied with. (Bond v. Nott, Cowp. 601; Bean v. Stupart, Doug. 11; 1 Arnould on Ins., § 215, p. 588.)

In Kemble v. Rhinelander (3 J. C. 134), Kent, J., says, “ A warranty must be literally complied with, but this strict compliance ought to operate in favor of, as well as against the assured, whenever he can bring himself within the terms of it.” The plaintiffs literally did all'they agreed to do. They kept and maintained a night watch on the premises every night, including that of the fire. He was competent, and faithfully performed his duties. The terms of the warranty do not necessarily imply an agreement, that the night watch employed should not do, what Mead did for Perrine, Patterson & Stack. We think that the'objections made and exceptions taken, are not such as to justify us in disturbing the verdict.

Judgment must be entered for the plaintiffs on the verdict.


source: Caselaw Access Project

author: By the Court. Emmet, J. Bosworth, J. Duer, J., dissented,

license: Public Domain

text:
    Belknap v. Sealey.
    Equity will rescind a contract for the sale of land, upon the application of the purchaser, when it clearly appears that the parties acted under a mutual mistake as to the number of acres or lots which the boundaries contained; and it is proved that the deficiency was material.
    In such a (¡ase, the relief will be granted, even when the words “ more or less ” are added to the description of the quantity of the land in the contract.

      (Before Duer, Bosworth, and Emmet, J.J.)
    October 28
    December 24, 1853.
    Even when the complaint claims relief solely upon the ground of a fraudulent representation by the vendor, the relief will be granted, if, in the answer of the defendant, the mistake is confessed.
    Judgment at special term affirmed, with costs.
    Appeal from a judgment at special term.
    The complaint alleges, that the plaintiff, on the 22d February, 1851, bargained with the defendant to buy of him a piece of ground at and near the south-east corner of Atlantic street and Clason Avenue, in Brooklyn.
    That defendant, well knowing the premises to contain a much less quantity than 8 acres and 154 perches of land—viz. 4 acres and TVro parts of an acre only, then and there falsely, and as plaintiff believes, fraudulently represented, or caused the premises to be represented, to him to be and contain 8 acres and 154 perches; falsely, and as he believes fraudulently and deceitfully, induced him to buy the said premises, and sold the said premises to him for fourteen thousand dollars.
    That plaintiff paid defendant one thousand dollars, part of the purchase money.
    That the premises did not contain 8 acres and 154 perches, but only 4 acres and T~yk.
    That defendant having so falsely and fraudulently deceived and defrauded him in the said sale, he thereby lost and was deprived of all the benefit and advantage which he might and otherwise would have derived and acquired from the said sale to him.
    That, on or about 8th March, 1851, as soon as he had ascertained that the said representations were untriie, he demanded of defendant a return of the one thousand dollars, which defen dant refused and still refuses. Plaintiff demands judgment for the one thousand dollars, and interest.
    The answer denies that plaintiff bargained with defendant to buy the premises; also that he well knowing the premises to contain much less than 8 acres and 154 perches—viz. only 4 acres, by falsely or fraudulently representing, or causing the premises to be represented, to plaintiff to contain 8 acres and 154 perches, falsely, or fraudulently, or deceitfully induced plaintiff to buy the premises, or sold them to him for fourteen thousand dollars.
    It avers, that shortly before the 22d February, 1851, one Herman C. Adams bargained with defendant to buy of him, for thirteen thousand dollars, the premises mentioned in complaint, particularly described in a deed made by Samuel T. Roberts and wife to defendant, dated 28th May, 1850, and therein described as containing about 9 acres more or less, excepting thereout 1 acre and 6 perches.
    That defendant expressly stated to Adams that he was ignorant of the quantity of land contained in said premises, and that if he purchased them of defendant he must purchase them as defendant had purchased them, as containing- more or less, and as described in said deed.
    That defendant left said deed with Adams for his examination. That Adams agreed to buy the premises of defendant, as described in said deed, be the quantity greater or less, for the sum of thirteen thousand dollars.
    That on or about the 22d February, 1851, Adams paid defendant one thousand dollars on account of said purchase, and requested defendant to give a receipt for that sum in the name of the plaintiff. That defendant gave such receipt in the name of plaintiff, solely at Adams’ request, and also at his request mentioned the price to be paid for the land to be fourteen thousand dollars.
    That he has no knowledge or information, sufficient to form a belief, what quantity of acres or perches the premises contain) and controverts the allegations in complaint as to the quantity therein stated, and denies that he falsely or fraudulently deceived or defrauded plaintiff in the sale, or that he made any representations whatever to plaintiff.
    That he has always been ready to complete the bargain made by him with Adams, and in pursuance of his (Adams’) request made out a deed conveying the premises to plaintiff) which deed, executed by himself and wife, he tendered to plaintiff on 10th March, 1851.
    The reply controverts the new matter alleged in the answer.
    It admits that defendant gave to him a receipt in his (plaintiff ’s) name for the one thousand dollars paid him as stated in complaint, but denies that it was so given in his name, or that the price to he paid for the land was mentioned to he fourteen thousand dollars at the request of Adams, unless such request was made by Adams as the agent of defendant; denies all knowledge or information of any other receipt; denies that defendant has been ever ready to complete the bargain made with him (plaintiff); or that he, in pursuance of any request of plaintiff’s, or made by his authority, executed or tendered any deed conveying the premises bargained for by plaintiff; or that plaintiff ever requested, or authorized any one to request defendant, to make out or execute a deed containing a less quantity than the premises were represented by defendant to contain as alleged in complaint.
    The facts of the case as proved on the trial were as follows.
    The premises in question were conveyed to the defendant by Samuel T. Roberts and wife, by deed dated 28th May, 1850, which was produced in evidence. They were described in that deed as “ containing about 9 acres, be the same more or less, excepting therefrom 1 acre and 6 perches;” but in fact they contained only 4 x\0-¡^- acres, as shown by the surveyor, who also testified that property in that part of Brooklyn was only valuable for building lots.

      Herman 0. Adams, a real estate broker, testified that his attention was first called to this property by Mr. Kinney, and that he had been in negotiation with the defendant for the purchase of it for six or eight months previous to February, 1851, about which time defendant finally proposed to take thirteen thousand dollars for it. Adams told him he had no doubt he, Adams, could sell it, and that he knew a party who had purchased in the neighborhood. Defendant told Adams he would give him all he could get over thirteen thousand dollars, and Adams told defendant he would take it himself if, he could not sell it.
    Adams then went to plaintiff, mentioned the property to him, and asked him fourteen thousand dollars for it, without disclosing the name of defendant as principal. Plaintiff requested Adams to show him a diagram of the property. Adams got one from the defendant, which was produced in evidence, showed it to plaintiff, and sold him the property for fourteen thousand dollars. Adams was but a few days in negotiating with plaintiff before he sold him the land. Before the bargain was concluded, Adams and plaintiff went on the land together and saw it, but, he thought, they had not the diagram with them on that occasion. Defendant had given Adams his deed, and Adams thought that he showed it to plaintiff before the bargain was concluded with him; but thonght he had not the deed when he and plaintiff went on the premises together. Adams did not know, and there was no evidence, that plaintiff and defendant had ever come together in relation to this purchase; nor was there any evidence that plaintiff’s name was mentioned to the defendant prior to the payment of the one thousand dollars, and taking the receipt for it from defendant.
    The receipt, in the defendant’s handwriting, was given in evidence by the plaintiff, as follows :
    “New York, February 22, 1851.
    “ Received from Edward Belknap, per H. C. Adams, one thousand dollars* on account of purchase of property at Brooklyn, being the same premises conveyed to me by Samuel T. Roberts, by deed dated 28th May, 1850, and which I hereby agree to convey to the said Belknap, or to his order, on the 10th day of March next, upon the payment of the further sum of thirteen thousand dollars; or six thousand dollars, and subject to a mortgage now upon the same made by me to J. & J. F. Marshall, to secure the sum of seven thousand dollars. Said deed to bear date the 1st instant. '
    “ Behj. T. Sealey.”
    The judge having refused to dismiss the complaint on this evidence, the defendant called

      Gabriel 0. Kinney, who testified, that the defendant had employed him to sell the property as his broker, and that he was to receive a commission from defendant; that he had made the diagram and shown it to Adams previous to the conversation between Adams and defendant about the land; that he was present at such conversation, and Adams told defendant he would take the property as represented in the diagram at fourteen thousand dollars. He did not recollect whether "Adams said anything about the quantity of land. That Adams in a few days afterwards called with the one thousand dollars, and witness was present when the defendant received it. Adams requested the receipt to be made to plaintiff; that he recollected a conversation which he thought was about the time Adams paid the one thousand dollars, in which Adams asked defendant what quantity of land there was, and defendant said he did not know anything more about it than what the deed to him spoke of; he represented it just as the deed represented it. Adams said he had sold it to the plaintiff.
    The cause was tried before Mr. Justice Campbell without a jury, and on this evidence the judge found that the quantity of land formed an essential inducement to the plaintiff to purchase, and that the actual quantity was substantially and essentially less than the quantity which the plaintiff supposed he was purchasing ; and so the plaintiff was misled as to the quantity he purchased, the representations made to him by the defendant being in fact untrue, though not intentionally false. He adjudged that the error into which the plaintiff was thus led was sufficient to warrant him in relieving him from the contract; and gave judgment for the plaintiff for the one thousand dollars paid, with interest.

      W. C. Noyes, for defendant,
    in moving to reverse the judgment, made and argued the following points.
    I. The motion to dismiss the complaint should have been granted, because—1. The complaint is for a cause of action founded solely upon fraud' and misrepresentation as to the quantity of land, and charged the defendant with making the misrepresentation, knowing it to be wholly false, and with the intent to deceive him; and that thereby he was fraudulently drawn into a purchase of only about four acres, when it was represented to him, and he bargained for, upwards of eight acres, and upon this the issue was joined. 2. Hot a particle of evidence was given to sustain the issue thus made ; nor was it pretended to be sustained. It was simply proved, that there was not so much land as the diagram and deed were supposed to call for; but there was no evidence of any misrepresentation on that subject, or of any fraud whatever. 3. This action was not maintainable without proof of the fraud alleged. It was not a case in which the plaintiff might disregard the allegations in the complaint charging fraud, and still recover, as if he had not inserted them: that rule only applied to cases where the action was upon a warranty, which the plaintiff alleged to have been a fraudulent one, but yet was permitted to recover, though he failed to prove the fraud, having proved the warranty, which was alone the gist of the action (1 Chitty’s Pl. Ed. of 1844, pp. 137, 388; Williams v. Allison, 2 East. R. 446). Here there was no warranty, nor any complaint as upon a warranty, nor, upon the facts alleged, was any action maintainable, without proof of the fraud. 4. The action was not maintainable, upon the ground that there was a mutual mistake as to the quantity of land, and that, therefore, the plaintiff was authorized to rescind the contract, and recover back that part of the purchase money which he had paid. (a) Ho such case was made by the complaint, nor was any such issue presented. (6) Ho such case was proved; none of the parties were mistaken as to the subject matter of the purchase, or as to the quantity; both saw and examined it, and knew the precise limits which the land embraced; it was simply an agreement to sell that specific parcel of land, and no more; and there was no evidence that the plaintiff was under any mistake about it; it was his duty to have had the land measured, if he wished to be certain as to the quantity, or to have protected himself by an express agreement as to there being a certain quantity. (o) The agreement for the sale of the land, covers only the premises described in the deed, whether small or great; it contains no clause guaranteeing any particular quantity ; and the deed itself, by which the lands were sold, and which the plaintiff saw and examined before he purchased, describes them as “ containing about nine acres, be the same more or less.” (d) The case is, therefore, to be considered in the same manner as if the deed was embodied in the agreement to sell, and then there was no statement or representation other than that the premises contained an uncertain quantity of land, which the plaintiff purchased for a specified sum, and in respect of which any idea of a warranty of quantity was excluded. (Winch v. Winchester, 1 V. & B. 375; Root v. Puff, 3 Bar. S. C. R. 353; 1 Sug. on V. & B. 320, and notes; Jackson v. Barringer, 15 John. R. 471; Jackson v. McConnell, 19 Wend. 175.) (e) It is settled in cases of this description, and in the absence of all fraud, that the plaintiff is not entitled to any relief, but must take and pay for the land as described. (Stebbins v. Eddy, 4 Mason’s R. 414; 2 Kent’s Com. 484, 5; Dart on V. & P. 443; 2 Russell, 570.)

      J. J. Townsend, for plaintiff,
    I. Where there is a substantial defect in the estate sold, either in title or in the representation 'or description of the nature, character, extent, or quality, which is unknown to the vendee, or in regard to which he is not put upon inquiry, he may rescind the contract, and a specific performance will not be decreed against him. (Story Eq. Jur., § 778; 2 Kent Com. 6 Ed., p. 475; Pringle v. Witten, 1 Bay R. 256; Gray v. Hankinson, id. p. 278; Glover v. Smith, 1 Eq. R. 433; Flight v. Boody, 1 Bing. N. C. 377; Jones v. Edney, 3 Camp, 285; Waring v. Hoggart, 1 Ry. & M. 39; Stewart v. Allison, 1 Mer. 26; Halsey v. Grant, 13 Ves. 78; Price v. North, 2 Young & Col. 621; Shackleton v. Sutcliffe, 1 De G. & S. 609.)
    II. The plaintiff has used extreme diligence, and has been in no default. (See Story on Sales, 422; Pringle v. Samuels, 1 Little, 94; Hill v. Buckley, 17 Ves. 394, 401; King v. Wilson, 6 Beav. 124.)
    III. The words “more or less” in the deed do not aid the defendant. The case does not show that the plaintiff ever saw the deed. These words are only intended to cover a reasonable defect. (Thomas v. Perry, 1 Peters 58; Quesnel v. Woodlief, 2 Hen. and Mun. 173, note; Day v. Fenn, Owen, 133; cited in Sug. on Ven. 370; Portman v. Mill, 2 Russ. ch. 570; Shackleton v. Sutcliffe, 1 De G. & S. 609; Hill v. Buckley, 17 Ves. 400; 4 Kent 467, 6th ed.)
    IV. A distinction existe between agricultural lands and lands valuable only for city lots, in reference to the materiality of the description of quantity.

      V. The judge who tried the cause passed upon the fact that the quantity described formed an essential inducement to the plaintiff to purchase.
   By the Court. Emmet, J.

The view taken of this case by the judge before whom it was tried presents the following questions.

First, Was the contract of sale made under a mutual mistake of both plaintiff and defendant as to the actual quantity of land ?

Second, Was the fact, in regard to which such mutual mistake existed, material to the contract; or, in the words of the judgment below, was the actual quantity substantially and essentially less than the quantity which the plaintiff supposed he was purchasing ?

Thvrd, Did such mutual mistake, and materiality as to the fact in regard to which it existed, warrant the court in rescind ing the contract and replacing the parties as they stood before it was made %

The last inquiry necessarily involves the consideration of the first; because the fact of the defendant being mistaken as to the quantity of land can only be obtained from his own allegations in his answer, and if those allegations, taken to be true, are sufficient to establish that fact, he must be bound by them in ' regard to the issues involved in the case.

-It is true, as urged by the defendant, that the cause of action set forth in the complaint rests exclusively upon the alleged misrepresentation and fraud of the defendant as to the quantity of land; and if the defendant had confined himself in his answer to a denial of that charge, the case would have presented the single issue, whether the plaintiff had been deceived in the purchase by the falsehood and fraud of the defendant. But the defendant, not denying the alleged discrepancy in the quantity of land, has distinctly set up his own ignorance on that subject, by disclaiming any knowledge in regard to it*when the contract was made, and by averring that during the negotiation he expressly stated such ignorance to Adams, the broker. If this statement was true, and that he really had no other knowledge as to the quantity of land than what he derived from the deed from Roberts to Mm, he was clearly as much under a mistake in that respect as the plaintiff, who has derived whatever belief or supposition he may have had as to the quantity of land, from the same source. The question of the defendant’s mistake was therefore distinctly presented by himself. He has no right to complain that fall credit has been given to Ms own statement in this respect, nor ought he to object to having this conclusion drawn from his answer, because no other can fully exonerate him from the imputation of having known at the time that the premises actually contained much less land than what the plaintiff, or any one, would have been led to suppose from the Roberts deed, and of having thus committed a deliberate fraud on the plaintiff. The judge on the trial was warranted, therefore, in viewing this case as one of mutual mistake in fact, and in holding that question, as matter of law, to be one of the issues involved in it; and his decision in that respect was a vindication of the defendant’s honesty and good faith in the transaction.

In considering the point of materiality, it should be observed, that this was a purchase in bulk, for a round and not inconsiderable sum, of a small piece of land, valuable only for braiding lots; and that the deficiency complained of amounted to nearly one-half of what might reasonably be inferred to be the quantity, from the description in the Roberts deed. That description, it is true, contains the words, be the same more or less,” in reference to the contents of the premises, but those words cannot, either on principle or authority, cover so glaring a discrepancy as this case presents. It was held, at a very early period of English jurisprudence, that the words sime phis, sim mimos, shall be intended of a reasonable quantity, with reference to the extent of the grant (Day v. Fynn, Owen R. 133); and the Court of Appeals in Virginia, more than half a century ago, decided that more or less,” inserted in a deed, should be restricted to a reasonable or usual allowance for small errors in surveys, and for variations in instruments. (Quesnel v. Woodlief, 2 Hen. &. Mum. 173, note.) Whatever latitude of discrepancy those words may have been held to embrace in particular cases, the principle, that they shall not cover more than an inconsiderable deficiency, in reference to the alleged or supposed contents, has been sanctioned by numerous authorities, and cannot now be questioned; and the rational and just rule may be invoked for the protection of vendors as well as purchasers. Equity always relieves the former where the excess is . flagrant. (Sugden on Vendors, ch. 6, sec. 3.) There can be no doubt of the fact, as found by the judge, that the actual quantity of land in this case was substantially and essentially less than that which the plaintiff supposed he was purchasing. The materiality of the mistake, therefore, as a requisite ground for the judgment which he rendered, was fully established.

It remains, therefore, to determine whether, fraud being the only ground upon which relief was sought by the complaint, and that ground not having been sustained, it was within the authority of the court to adjudge that the plaintiff should be relieved from the contract, and the money paid by him be refunded. If the defendant had simply denied the fraud imputed to him, and driven the plaintiff to sustain that ground by proof, and the plaintiff had failed to do so, the proper disposition of the case would have been to dismiss the complaint; but, as «already shown, the defendant, instead of holding the plaintiff strictly to the issue of fraud, expanded the field of inquiry, by setting up his own ignorance, at the time of the purchase, of a discrepancy in quantity, which he could not deny, and which on its face was material, and by so doing he enlarged the area of jurisdiction, within which the merits of this case should be considered and decided upon.

With these elements of mutual mistake and materiality, and the contract being yet in fieri, it came strictly within the equitable powers of the court to rescind the purchase and to restore the parties to their original rights.

This view of the case is strengthened by high authority. On a bill to annul a contract for the sale of a large tract of land, and to recover back the portion of the purchase money which had been paid, on the ground that representations had been fraudulently made that the tract contained a much larger quantity of land than turned out to be true, it appearing from the answer and evidence that both parties had acted under a mistake in regard to that fact, which was held to be material, Judge Story disregarded the question of fraud as unnecessary and improper to be considered, and deemed it the duty of the court to decree, on the grounds of such mutual mistake and materiality, that the agreement should be rescinded and the parties reinstated in then* antecedent rights and interests. (Daniel v. Mitchell, 1 Story R. 172.)

Bosworth, J.

The statement, by the judge who tried this action, of the facts found by him, is not very precise. I think an ordinary man, of common understanding, on reading it, Would say the judge had found that the defendant untruly, but innocently, misrepresented the quantity sold, and that this was not only an operative, but was also an essential inducement to the contract. That the quantity was only about half of what it was represented to be, and, therefore, the plaintiff was equitably entitled to a rescission.

Assuming these to be the facts found, the judgment cannot be said to be erroneous, unless the cause of action stated in the complaint differs in its entire scope and meaning from that established by the facts found by the court (Code, §§ 171,176), or unless there is no evidence to support the facts as found, or unless the facts found are insufficient to constitute a cause of action.

Courts of equity have so long rescinded contracts, on account of their having been induced by a mutual mistake as to material facts, I do not think it will be seriously contended that no such relief can be properly granted, for that cause. (Champlin v. Levin, 18 Wend. 407.)

I do not think the judgment should be reversed, merely because the evidence in support of the facts as found is slight. There was some evidence to support it. The diagram exhibited had a memorandum on it, stating that the “ deed calls for 9 acres, less 1 acre and 6 perches, sold.” There was less than four acres and a-half, exclusive of that which had been sold. The defendant’s witness states there was conversation as to the quantity, and the “ defendant represented it just as the deed represented it.” The diagram neither states the length nor the course of the boundary lines.

I do not feel at liberty to hold that the facts found are so clearly contrary to evidence, that for that cause alone the judgment must be reversed.

I do not assent to the proposition that the whole right to relief is, by the complaint, based exclusively on the ground of the intentional fraud of the defendant. The pleadings are under the Code, and their forms and sufficiency are to be determined solely by the Code itself. (§ 140.)

The complaint states that the plaintiff was induced to enter into the contract by the defendant’s “ falsely, and as plaintiff believes, fraudulently representing,” &c.; and further charges, “that so the said defendant falsely, and, as he believes, fraudulently deceived and defrauded the plaintiff in the said sale,” &c.

Here “ falsely” is used in contrast with “ fraudulently,” and as synonymous with erroneously arid untruly. The allegation of falsely deceiving is only equivalent to saying, that the plaintiff credited and acted on this material, but untrue statement, and was deceived by it.

By alleging that the defendant made this statement falsely, and, as the plaintiff believes, fraudulently, the complaint charges, first, actual misrepresentation; and, second, a belief that it was fraudulently made. The defendant denies making any representation as to the quantity, and avers that he was ignorant of the quantity. He also denies making any fraudulent misrepresentation.

There were issues therefore—first, as to whether any actual misrepresentation was made; and, second, whether, if made, it was made with an actual intention to defraud.

Proof of actual misrepresentation of matters material, and operative inducements to the contract, by which the plaintiff was misled, entitled him to rescission. Enough was proved, regarding the facts found as being proved, to make it proper to grant the relief adjudged.

It is a case, therefore, in which the allegation constituting the cause of action was unproved, “ in some particular or particulars only,” but not “in its entire scope and meaning” (Code, § 171), and presented neither the case of a failure of proof, nor of a variance which the judge at the trial was at liberty to regard. (Code, §§ 169, 170, 467.)

As enough was alleged, and has been established, to constitute a good cause of action, independent of the allegation of an actual fraudulent intent, there is no ground for reversing the judgment except the solitary one, that the evidence given was insufficient to warrant the finding of an actual misrepresentation of the quantity on which the plaintiff relied, and by which he was misled. I do not understand that Mr. Justice Dube wculd reverse, solely on the ground that the facts established were found so clearly against evidence, that the judgment for that cause alone ought not to be permitted to stand. In this case the contract has not been consummated; no deed has been executed. The agreement is, as yet, executory. The case, therefore, does not fall within the rule which controlled the decision made in Fowre v. Martin (Court of Appeals, Oct., 1852). In the latter case, Gridley, J., says: “ It is not claimed that tie original agreement was procured by fraud, misrepresentation, or mistake.” A conveyance had been accepted, without any objection that it did not conform to the actual agreement and under-standing of the parties. The contract had been cmsummated.

In tin ease before us, it is alleged and proved that the agreement wa¡¡ procured by a misrepresentation of material matters, forming in essential inducement to the contract. It is a case of mutua, mistake, induced by untrue representations of the defendant If they were not innocently made by him, he committed an actual fraud. But though-made innocently, equity will not permit the defendant to hold the plaintiff to a contratt which he has by such means induced him to enter into, vhere the thing contracted for is so essentially different from wiat it was represented, and, by reason of such representation, vas believed to be. I think the judgment should be affirmed

Duer, J., dissented,

principally upon the ground that, in his judgmeit, the only issue made by the pleadings was, that of the frauc of the defendant, and that this having been found in his favoi, the court had no power to grant relief upon the ground <f mutual mistake.

He aim expressed great doubts whether, had the complaint been prcperly framed, the contract, upon the evidence, could be justlyrescinded. As the true boundaries had been shown to the plaintiff, it might very reasonably be held, that he took Upon himself the risk of these boundaries containing the number of acres that it was believed they included.

Judgment affirmed, with costs,