#### The Hough Cash Recorder Co., Appellant, *v.*John S. Mowry, Respondent.

(County Court, Oneida County,

March, 1898.)

Action on a written order — Proof that the order did not contain a stipulation which the vendor’s agent stated was in the order.

Where the agent of a vendor states, at the time of the execution by the vendee of a written order for a cash recorder, that the order contains a stipulation that the recorder shall be sent upon trial and may be returned if it proves unsatisfactory, the vendee is entitled, in" an action brought upon the order, to show that such was the agreement and that it has been omitted, as he has a fight to rely upon the statement of the agent.

*234Appeal from a judgment in favor of defendant entered upon a' verdict of a jury by S. E. Spinning, a justice of the peace of the city of Borne, on the 30th day of September, 1897.

Action upon a written contract of sale.

Timothy Curtin, for appellant.

H. C. Wiggins, for respondent.

Dunmore, J.

At and prior to the time the contract in writing was signed by the defendant, he and plaintiff’s agent Page had a conversation, about the terms of the contract. The defendant testified that it was agreed that a cash recorder should be sent him on trial'and if it did not work to his satisfaction he could return, it and need’not pay for it. The defendant further testified that thereupon Page made out what he called an order and said it was as they had agreed, and thereupon the defendant signed it. Upon trying the machine, the defendant testified that it did not work to his satisfaction and he returned it.' ’

The foregoing testimony, if credited by the jury, entitled the defendant to a verdict. It presented a question of fact and the finding of the jury is conclusive upon this court. Defendant had . a right to rely upon the statement of Page that the paper signed contained the agreement'as made. Mead v. Bunn, 32 N. Y. 275 (279); Smith v. Countryman, 30 id. 655.

In Mead v. Bunn, at page 280, the Court of Appeals announced the rule as.follows: “Every contracting party has an absolute right to rely on the express statement of an existing fact, the truth of which is known to the opposite party, and unknown to him, as the basis of a mutual engagement; and he is under no' obli-. gation to investigate and verify statements, to the truth of which, the other party to the contract, with full means of knowledge, has deliberately pledged his faith.”

The defendant having signed the contract on the representation that it contained the terms of the oral agreement, the written contract would not-be binding upon him and, in an action upon it,' he is not precluded from showing by parol what the actual terms of the contract were.

The appellant’s counsel relies upon the case of Wheeler v. Mowers, 16 Misc. Rep. 143, to sustain the doctrine that where a party *235has full opportunity to read, a contract before he executes it, he is not relieved from liability thereon because he omitted to read it, or read it carelessly and failed to notice some of its provisions. In that case the contract was executed in duplicate and each party took and retained a- copy. The plaintiff put & hot water-heating apparatus into the defendant’s house and expended several hundred dollars in so doing. The defendant testified that he put his copy of the contract in his desk and omitted to read some 'of its provisions until he was called upon to pay, when he discovered that the agreement as orally made had not been embodied in the written contract. This-court held, and I think correctly, that under those circumstances the defendant was liable. That a defendant who, having a copy of the contract in his possession, permitted the other party to perform at a considerable expense, would not be permitted to escape liability because he had omitted to read and learn the term of 'his contract. The case at bar is not a parallel case.

I think the answer was broad enough to justify the reception of the evidence.

The judgment must, therefore, be affirmed, with costs.

Judgment affirmed, with costs.