Brewster v. Brewster

The opinion of the court was delivered by Beasley, Chief Justice.

The question certified to this court, for its advisory opinion, is whether the evidence offered by the plaintiff, in rebuttal of the case made for the defendant by the sealed agreement, was legal, and should have been admitted.

*121 In substance, the proffer of the plaintiff was to prove that, according to the true agreement between himself and the defendant, he had not stipulated to pay the note in question in this suit, but that such agreement, so far as it in terms extended so as to embrace such note, had been got from him by fraud. I can see no valid objection to this as a defence. Under the influence of our present statute the existence of a seal to this instrument can have no effect. The defence, if received and proved, will have the effect of confining the agreement to its honest purpose. "Where fraud enters into a contract, it is not always necessary for the party wronged to rescind it in order to resist its full operation. Thus, if a purchaser buying land discovers, after taking title, that he has been cheated, by means of fraudulent statements with respect to the property, he is not compelled to rescind the agreement, but he can defend and claim an abatement in a suit against him for the price of the land. This rule of practice is well settled, and is stated in the recent case of Lord v. Brookfield, 8 Vroom 552 . In such instances, it will be perceived, that the contract is permitted, in substance, to be amended so as to conform to the agreement of the parties, expressed in honest terms; that is, the price of the land is fixed at the sum agreed upon, minus the fraudulent exaggeration. The practical effect is to let the agreement stand, and to eliminate its fraudulent element. 27ow that is precisely the offer in the present case. The contention sought to be introduced was, that the terms of the agreement, so far as related to the note in question, were fraudulently introduced, the representation being that the note had been taken up. By the force of such proof, the operation of the agreement would have been circumscribed, so that the instrument would have been rendered inefficacious with respect to its ingredient. It is clear that the justice of the case is thus reached. The agreement in this case comes in collaterally, but the opportunity to defeat it, in whole or in part, must, in such a juncture, be the same as it would be in a suit founded on the covenant. Suppose this note had been paid by the defend *122 ant, and he had then sued the plaintiff for a breach of this contract, in not taking up the paper, can there be a doubt that the present imputed fraud would have been then admissible as a defence ? A rescission of a contract, on the ground ■of fraud, is indispensable only when the design is to vacate its entire obligation ; and it does not occur to me that there is any instance in which it may not be defeated on the same ground, in any part of it, when by so doing full justice to both parties can be done. This doctrine is the natural result of the opposition of the law to the circuity of action. If the present plaintiff could be defeated in his effort to redress the fraud practiced upon him, by showing the infirmity in the instrument now iuterposed, he could, after such repulse, accomplish precisely the same end by an action founded in the deceit. Such indirection in the remedy would be always inconvenient, and, many times, ineffectual. Counsel have not pointed out any precedent in point, nor am I - aware of such, but, reasoning on general principles, my conclusion is, .that the defence tendered to the instrument in question, in .the present case, was admissible.