This action was brought by plaintiff's testator to recover damages for the breach of a contract. The complaint alleged, in substance, that plaintiff is a farmer and fruit grower owning and residing on a farm in the town of Ridgeway, in the county of Orleans, N.Y.; that on or about the 4th day of November, 1909, plaintiff and defendant entered into a mutual contract whereby it sold to him 405 first-grade peach trees of the following varieties: 200 Albertas; 100 Early Crawfords, and 105 Chares Choice, at the agreed price of 10 cents per tree, and promised to deliver same in good condition at the station at Medina, N.Y., on the New York Central and Hudson River Railroad, during the months of March, April or May, 1910; that plaintiff, on his part, purchased said trees from defendant and promised and agreed to accept and pay for them; that at the time of making said contract the parties talked over, considered and agreed that the trees were specially selected, profitable and desirable varieties for plaintiff to plant on his farm in the spring of 1910, and grow for an orchard; that instead of delivering the peach trees set forth and described in said agreement, defendant committed a breach of said contract by failing to deliver any of said trees to plaintiff at the time and place named, but instead thereof delivered different and worthless varieties; that it was impossible to tell by inspection and examination at the time the trees were delivered, and plaintiff did not know, that the trees were not peach trees of the varieties contracted for and he received and planted them on his farm relying on defendant's *Page 256 agreement; that plaintiff first discovered in the fall of 1913 that defendant had substituted other varieties of trees for those purchased; and by reason thereof damages to the amount of $1,600 had been sustained, for which judgment was demanded.
The answer admitted substantially all the allegations of the complaint, except that the trees delivered did not correspond to those agreed to be sold, and that plaintiff had been damaged, which were denied. It also alleged, affirmatively, that by the terms of said contract the trees were not warranted in any manner, but it was agreed if the same were not true to name they might be replaced or the money paid therefor refunded; that plaintiff has never permitted defendant to refund said money, replace said trees or notified it that the trees were not true to name; and asked that the complaint be dismissed.
The plaintiff had a verdict for a substantial amount, upon which judgment was entered, and from which an appeal was taken to the Appellate Division, where the same was affirmed and defendant appeals to this court.
At the trial it appeared from plaintiff's testimony that some time in October he had a talk with one Mull, defendant's agent, with reference to buying fruit trees; that as a result, on or about the 4th of November, 1909, he signed an order for the trees mentioned in the complaint, copy of which was then given to him and which he has since retained; that he did not have his glasses and, therefore, could not read the order, but relied on the statement of Mull that it contained nothing but a statement of the varieties, sizes, price and time of delivery of the trees. The complaint was not amended, nor a reformation of the contract asked. The order was put in evidence by the defendant and contained, among others, this provision: "Any stock which does not prove to be true to name as labeled is to be replaced free or purchase price refunded, but is not further warranted * * *." *Page 257 The trial proceeded and the case was finally submitted to the jury under the claim of the defendant, on the one hand, that whatever talk was had in the first instance between plaintiff and Mull was thereafter reduced to writing and plaintiff was bound thereby, and on the other hand, the claim of plaintiff that he was induced to sign the writing by reason of the false and fraudulent statement made by Mull. The learned justice was requested to charge the jury that the written contract was the only one between the parties which could be considered by it, under the allegations of the complaint. This was refused and an exception taken, the court charging that if the jury reached the conclusion that plaintiff's signature to the contract was obtained by false and fraudulent statements made by Mull, then he was thereby relieved from the provision quoted and could recover under the oral contract. The exception to the admission of evidence tending to establish fraud and the charge permitting the jury to award damages under an oral contract, in case it found that the signature to the order was obtained by fraud, present the principal questions to be determined by this appeal.
The action was to recover upon the breach of a contract alleged to have been made on or about the 4th of November, 1909. That contract was in writing, but under the instruction of the court the jury has found that plaintiff is not bound by it since his signature thereto was obtained by fraud and a recovery has been had upon an alleged oral contract. There was no allegation in the complaint that plaintiff's signature was obtained by fraud and yet he was permitted to offer proof from which the jury found such fact.
Discussion or the citation of authorities is unnecessary to show that a party cannot allege one cause of action in his complaint and then, without an amendment, at the trial recover upon another. The purpose of a pleading *Page 258 is to notify the adverse party in advance of the trial just what his adversary claims. A pleading is to be liberally construed. Technical rules relating thereto no longer prevail, but the rule does remain that a party cannot come into court asserting one cause of action and recover on another. If he could, then the pleading, instead of serving a useful purpose, by notifying the adverse party what he might expect to meet at the trial, would only mislead and deceive him. (Northam v. Dutchess County Mut.Ins. Co., 177 N.Y. 73; Reed v. McConnell, 133 N.Y. 425;Truesdell v. Sarles, 104 N.Y. 164; Southwick v. FirstNational Bank of Memphis, 84 N.Y. 420; McClung v. Foshour, 47 Hun, 421; affd., 113 N.Y. 640.)
Once a contract has been reduced to writing and executed all prior oral negotiations are merged therein and the rights of the parties must be determined by its terms. It cannot be contradicted, qualified or destroyed by oral negotiations which induced its execution. This rule is so well recognized and firmly established that the citation of authorities is unnecessary. If the instrument as executed fails to conform to the agreement between the parties in consequence of a fraudulent misstatement as to its contents, or a mutual mistake, however induced, or the mistake of the one and the fraud of the other, a court will reform the instrument so as to make it conform to the actual agreement. (Albany City Savings Instn. v. Burdick, 87 N.Y. 40;International Ferry Co. v. American Fidelity Co.,207 N.Y. 350.) But a reformation can only be had where an issue is formed by the pleadings for that purpose. A contract induced by fraud as to a matter material to the party defrauded is not void, but voidable. (Adams v. Gillig, 199 N.Y. 314.) It may, for that reason, be reformed. (Welles v. Yates, 44 N.Y. 525;Albany City Savings Instn. v. Burdick, supra.) *Page 259
I know of no authority which permits a party, after he has entered into a written agreement, to decide for himself that such agreement is void and successfully maintain an action on a prior oral agreement. If this can be done then a written contract serves no purpose whatever, since all a party has to do is to declare generally upon a contract and when the written one is produced, offer evidence that his signature thereto was procured by fraud. One who has been induced to purchase property by fraudulent representations, has, upon discovery of the fraud, three remedies, any of which he may elect to pursue: (a) Rescind the contract absolutely and sue in an action at law to recover the consideration parted with. To succeed in such action he must allege and prove that he has restored, or offered to restore, to the other party whatever may have been received by him under the contract (Gould v. Cayuga Co. Nat. Bank, 86 N.Y. 75); (b) bring an action in equity and there obtain full relief. (Allerton v. Allerton, 50 N.Y. 670.) Such action is based not upon a rescission, but for a rescission, and it is necessary for the plaintiff, in order to succeed, to offer in his complaint to return what he has received and make a tender thereof on the trial; (c) retain what he has received and bring an action at law to recover the damages sustained. Such action is based upon an affirmance of the contract and the measure of the recovery is the difference between the article sold and what it would have been according to the representations. (Vail v. Reynolds 118 N.Y. 297;Krumm v. Beach, 96 N.Y. 398.)
Certain cases are called to our attention, which it is claimed sustain the ruling of the trial judge: Wilcox v. American Tel. Tel. Co. (176 N.Y. 115); Smith v. Ryan (191 N.Y. 452);Trambly v. Ricard (130 Mass. 259); Eldorado Jewelry Co. v.Darnell (135 Ia. 555); Lotter v. Knospe (144 Wis. 426);Biddeford Nat. Bank v. Hill (102 Me. 346), and Cummings v.Ross (90 Cal. 68). All but one of these *Page 260 (the California case) fall into one of three classes: (1) Where the plaintiff's recovery is sought to be defeated by a written instrument which is set up in the answer. The legal existence of such instrument, no reply being required, is denied by the plaintiff. Hence an issue is formed as to the validity of such instrument which can be tried in the action; (2) where the action is brought upon a contract, the validity of which is denied in the answer, or (3) where releases or receipts upon their face purport to extinguish the cause of action alleged. In such case the plaintiff is permitted to prove that the release or receipt was fraudulently obtained and for that reason never had any legal effect. This is upon the theory that neither a receipt nor a release is a contract or an executory instrument. They are mere declarations or admissions in writing (Stiebel v. Grosberg,202 N.Y. 266) and being such may be contradicted or explained.
In the California case an issue was presented by the pleadings as to the validity of the contract involved. The action was brought to foreclose a mechanic's lien for work done in the construction of a building. An issue was raised as to the performance of the work alleged to have been done under the contract described in the complaint. The answer alleged another contract, including extra work sued for by the plaintiff upon aquantum meruit. It was held that it was competent for the plaintiff, when such other contract was introduced in evidence by the defendant, to show in rebuttal that he signed it under the defendant's fraudulent representation. The defendant having alleged the existence of the other contract to defeat plaintiff's claim, and no reply being required, its validity was put in issue.
In the present case the plaintiff in his complaint did not ask for a recovery based on the breach of an oral contract made in October; on the contrary he alleged the contract was made on or about the 4th of November, *Page 261 which turned out to be in writing. If it did not correctly represent the terms of the agreement, due to the fraudulent statement of the defendant's agent, then plaintiff's remedy was to ask to have it reformed. That could not be done under the complaint in its present form. The complaint had to be amended so as to present that issue, the trial of which would be by the court without a jury.
The judgment appealed from should be reversed and a new trial ordered, with costs to appellant in all courts to abide event.
CUDDEBACK and HOGAN, JJ., and CRANE, J. (in opinion) concur with COLLIN, J., for affirmance; HISCOCK, Ch. J., and CHASE, J., concur with McLAUGHLIN, J., for reversal.
Judgment affirmed.