I concur in the conclusion that upon the trial the defendant was properly awarded the affirmative but dissent from the proposition that the court erred in its charge as to the effect of the transaction between the parties when the plaintiffs learned the entire truth as to the defendant's financial statement. If, upon that occasion, the defendant offered to return the goods purchased, upon the surrender of his notes, and the plaintiffs refused or omitted to rescind the sale, either intoto or as to the credit, but on the contrary said that the sale, which plainly included the credit, was all right, they could not subsequently rescind the original contract either as to the sale or the credit which they thus ratified with a full knowledge of all the facts. If it be admitted that there was a fraud through which the defendant obtained the plaintiffs' goods, which may be doubted, still the contract was not void but merely voidable and might be ratified by the plaintiffs. Under such circumstances a party *Page 105 who is entitled to repudiate a contract upon the ground of fraud is required to act promptly after its discovery. (Bruce v.Davenport, 3 Keyes, 472; Guckenheimer v. Angevine, 81 N.Y. 394;Schiffer v. Dietz. 83 N.Y. 300; Gould v. C.C. Nat.Bank, 86 N.Y. 75; Baird v. Mayor, etc., 96 N.Y. 567;O.P.R.R. Co. v. Forrest, 128 N.Y. 83; Mayo v. Knowlton,134 N.Y. 250, 254.)
If the plaintiffs intended to disaffirm their contract with the defendant, it was their duty to do so promptly. The fact that there was no such disaffirmance at the meeting in September or until months afterwards when this action was commenced, is potent, if not conclusive, evidence that the plaintiffs intended, what their words signified, that the original contract was all right and they were satisfied with it. Upon this subject the court charged: "The evidence is that the plaintiff Heilbronn called at the place of business of the defendant, and called his attention to this change in the rating, and the defendant says at that time he explained to him, to the plaintiff, how that occurred, that it was a mistake, and stated substantially to him then, as he states now upon the witness stand, and he says that he accompanied the explanation by stating that if he was not satisfied, that if the plaintiffs were not satisfied with his honesty or with his credit — you remember what he said, that the diamonds were there and they could have them back, offering, as he says, to return the diamonds and receive back his promissory notes. Now, if he did that, if he made that explanation, if it was a mistake, and he explained to Mr. Heilbronn that there was a mistake, as he says he did, and offered to return the diamonds upon the receipt of his notes, and Mr. Heilbronn refused to receive the diamonds, it was a waiver of the fraud, and the plaintiffs cannot recover; the plaintiffs were required to rely upon the promissory notes they had taken when this sale was made, if at that time the fraud was waived." In view of the law relating to the prompt disaffirmance of contracts for fraud, did even this isolated portion of the charge amount to more than saying that, if the mistake *Page 106 upon which the claim of fraud was based was explained to the satisfaction of the plaintiffs, and the defendant offered to disaffirm and the plaintiffs refused, thus not promptly repudiating or disaffirming the original contract either intoto or as to the credit, they could not recover? I think it did not. But the court further charged upon this subject as follows: "If you find that the defendant offered to return the diamonds, and gave this explanation, and that Mr. Heilbronn said he was satisfied to allow the sale to stand as it was, then the plaintiffs cannot recover. If, on the other hand, this offer was not made, then the plaintiffs are entitled to recover if you find that this sale was fraudulently procured."
We ought not to seize hold of an isolated portion of a charge for the purpose of criticism, and, if the charge as a whole conveyed to the jury the correct rule of law on a given question, the judgment will not be reversed because detached sentences may be erroneous. If the language employed is capable of different constructions, that construction will be adopted which will lead to an affirmance of the judgment, unless it fairly appears that the jury were, or at least might have been, misled. (Caldwell v. New Jersey Steamboat Co., 47 N.Y. 282; Losee v.Buchanan, 51 N.Y. 476, 492; Crist v. Erie Railway Co.,58 N.Y. 638.) "In considering whether a single proposition contained in a charge is erroneous, it will be construed in connection with the context, and the whole charge, or so much of it as is connected with and tends to modify or explain the part claimed to be objectionable, will be considered. And although a part of the charge excepted to, when isolated from the context, is erroneous, yet the judgment will not be reversed and a new trial granted for that cause, if it appears that the jury could not have been misled thereby." (Sperry v. Miller, 16 N.Y. 407, 413; Baylies on New Trials and Appeals, pp. 182, 183; Smith v. Matthews,152 N.Y. 157.)
When the whole charge upon that subject is fairly considered, it seems to me that it amounted only to an instruction to the jury that if, at the time of the interview between the parties *Page 107 in September, the defendant explained to the plaintiffs the mistake in his statement as to his financial rating, offered upon the receipt of his notes to return the goods purchased, and the plaintiffs said they were satisfied to allow the sale to stand as it was, then the plaintiffs could not recover. While it is true that the first portion of the charge as made did not include the statement of the plaintiff that he was satisfied to allow the sale to stand as it was, still, after briefly stating to the jury the rule relating to the credibility of witnesses, the court immediately re-stated the proposition and included therein the statement by the plaintiff that he was satisfied to allow the sale to stand as it was; so that the court's last charge upon the subject was that if the explanation of the defendant was given and there was an offer to return the diamonds and the plaintiff said he was satisfied to allow the sale to stand as it was, then the plaintiffs could not recover.
It seems to me that the jury must have understood this charge, when taken as a whole, as an instruction to the effect that if the facts as to the transaction between the parties in September were as proved by the defendant, and the plaintiff was at the time satisfied, as he admitted, then the plaintiffs were not entitled to recover. But if the facts were as claimed by the plaintiffs, then they were entitled to recover if the sale was fraudulently procured. The proof justified the charge. Both the defendant and his son testified that upon that occasion after a disclosure of all the facts in regard to his financial standing and as to the mistake in the statement first delivered to Bradstreet Co., the plaintiffs said it was all right. Moreover, the plaintiff himself testified that upon that occasion, after his discussion of the matter with the defendant, he went away satisfied. Under this proof, coupled with the fact that months elapsed before any action was brought or the purchase price demanded, it is evident that the plaintiffs ratified the sale upon credit with a full knowledge of the facts, and, by not having promptly rescinded either the sale or the credit, the original contract was binding upon them. Under all the facts and circumstances established by the proof, it seems clear *Page 108 that the charge, when considered as a whole, was proper, and, under the rules applicable to its consideration, the judgment should not be reversed because some isolated portion of it might be subject to criticism.
As I find no other exceptions which would justify a reversal, I am of the opinion that the judgment should be affirmed.
PARKER, Ch. J., BARTLETT and CULLEN, JJ., concur with WERNER, J., for reversal; GRAY and VANN, JJ., concur with MARTIN, J., for affirmance.
Judgment reversed, etc.