Bennett v. Burch-Buell Motor Corp.

Crouch, J.

The action is in tort for common-law deceit. The complaint in substance alleges that by reason of certain false statements knowingly made by defendant, plaintiff was deceived and induced to buy a certain automobile to his injury and damage.

Upon the trial plaintiff offered to prove the false statements. Defendant objected to the proof upon the ground that the contract of purchase was in writing and that oral testimony to vary its terms was inadmissible. The objection was sustained and plaintiff was nonsuited.

It is reasonably clear that the fraud here alleged was in the treaty and not in the factum. The written contract was not void, but voidable. Had the action been brought for breach of the written contract the evidence offered would have been inadmissible. So, also, if it had been brought for breach of an oral contract, which included terms not in the written contract. But the action here is neither of those.

The remedies open to a person in plaintiff’s plight have often been pointed out. (Kountse v. Kennedy, 72 Hun, 311, 314 ; affd., 147 N. Y. 124 ; Whipple v. Brown Brothers Co., 225 id. 237, 259 .) One of them is to keep what he has received and to sue for damages for the fraud. This is what plaintiff here has done.

We think the evidence offered should have been received. The *518 judgment should, therefore, be reversed on the law and a new trial granted, with costs to the appellant to abide the event.

All concur. Present — Hubbs, P. J., Clark, Sears, Crouch and Taylor, JJ.

Judgment reversed on the law and a new trial granted, with costs to appellant to abide event.