This action was brought to recover the agreed price of one “ great gross papers of pins ” alleged to have been sold and delivered to the defendant. The evidence shows that the defendant signed an order for the pins, which was on a printed form, and that all of it, with the exception of the name of the agent and the date and the word “ one ” '—before the words “ great gross ”—• and the advertisement of the defendant, was in print. The president of the company, on receiving an order from the agent, wrote to the defendant stating its receipt, sending him a copy of the defendant’s advertisement to be printed on the goods, and requesting him to check it off, make any changes or corrections he desired, and, if O. K., to sign and return. This order the defendant signed over a statement that he had checked it all off carefully and found it to be correct in every particular.
The defense was that the defendant had been fraudulently *59induced to sign the order, his testimony showing that the agent offered him pins and urged him to purchase a gross, and not a great gross, which was twelve times as much, which latter is the amount the plaintiff claims to have sold. The defendant testified that he told the agent he could not use even a gross and wanted a half gross, but that the agent insisting that a gross was the smallest quantity that could be ordered, he finally agreed to purchase one gross, and that nothing was said during the entire conversation about one great gross of pins; that the agent placed the order before him and pointed to the reading matter; that the defendant did not read the paper through, but wrote his name and address, and that the agent wrote the word “ one ” before the printed words “great gross ” on-the order. A saleswoman in the defendant’s employ claimed to have overheard the conversation and testified that it related to a gross of pins and not to a great gross. Upon the cross-examination of the president of the plaintiff, and by other witnesses, it was made to appear that similar mistakes had occurred between the plaintiff and other customers, which had been the subject of several law suits.
At the close of the case, the learned trial judge directed a verdict for the plaintiff, it appearing that the paper was signed by an intelligent man who could read and write, without any inducement on the part of the plaintiff or its salesman, or any representation that was misleading; that fraud could not be predicated upon a transaction like that disclosed by the evidence; that, after the order was given, the defendant ratified the transaction by answering the communication sent to him by plaintiff’s president, which contained a copy of the order for one great gross, and by signing the statement “We have checked this all over carefully and find it to he correct in every particular; ” and that it was only after that that the plaintiff went ahead and filled the order and shipped the goods. Commenting on these facts, the learned trial judge said: “ Under those circumstances, it seems to me that there is no room for inferring that there was any overreaching of the defendant, nor any attempt to deceive him in any respect. On the contrary, there was an effort to notify him expressly of what he had agreed to, and it was for him then, in the exercise of ordinary prudence, to have protected himself if he had been misunderstood, and have prevented the plaintiff from going on to fill the order, the plaintiff having received the order *60through one of their salesmen and taking the precaution to repeat it back to the defendant. There were no misrepresentations to induce him to acknowledge the correctness of the order as stated in the second writing.”
The appellant contends that this direction was wrong, and that, upon the evidence, it was a question for the jury as to whether or not the defendant was overreached. There can be no question that the plaintiff’s case was very strongly intrenched by the second paper which the defendant signed and returned to the plaintiff. Were it not for this, it would have been clearly a question for the jury; and the point remaining for our consideration is: Did the signing of the second paper make the evidence so preponderating in plaintiff’s favor that it was proper to direct a verdict ? Or, put it in another form, had the question been submitted to the jury, had they decided in defendant’s favor, would the verdict have been set aside as against the weight of evidence ?
This question was considered in the Michigan courts in an action brought by this plaintiff against one Rosenbaum (63 N. W. Rep. 1011). There as here the defendant received from the plaintiff a letter acknowledging receipt of the order for three great gross, and with proof of the defendant’s advertisement, and asking the defendant to check it all off, and if O. K. to sign and return the letter. The defendant placed his O. K. after the advertisement, signed the letter and returned it. The defendant testified that he intended that his order should be only for three gross, and that, in signing the letter, he paid no attention to the quantity stated therein, as he thought his approval to the advertisement only was asked. The court says: “ It is urged that this case is distinguishable from the Netzorg case (Shrimpton v. Netzorg, 62 N. W. Rep. 343) in that here a confirmatory order was given. It was entirely proper to permit the explanation of the circumstances under which this order was obtained. Both papers related to the same transaction. If the first was obtained through fraud, defendants would be bound to repudiate it when discovered and not before. The transaction was tainted by the fraud in the procurement of the original order, and the procurement of the' confirmatory letter did not purge the transaction of the fraud. The testimony tending to show similar transactions with others was admissible as bearing upon the question of intent.” •
*61As will be seen, upon evidence like that adduced in this case, the defendant there obtained a judgment which was affirmed upon appeal. We agree with the reasoning in that case. The confirmatory letter was part of the same transaction. If by fraudulent means the defendant was induced to enter into the contract, the fact that he was afforded means of discovering the fraud and did not discover it, cannot take away his right to rescind when he did discover it. The most that can be predicated of his failure to note that the confirmatory letter spoke of a “ great gross,” is that it was a careless and negligent way of conducting business; and this would be a circumstance for the consideration of the jury militating against the probability of the defense. Still, if the original transaction was tainted with fraud, and the confirmatory letter was but a step in the transaction, there is nothing, barring an estoppel, which should legally prevent a person, even though negligent and careless, from invoking the rule that he is protected against fraudulent acts upon the part of the person with whom he is dealing. We do not mean to imply that the testimony upon the question of fraud is either conclusive or satisfactory, our province being merely to determine whether there was sufficient evidence to go to the jury upon the question.
That there was no estoppel we think is clear. An estoppel could only be based upon the fact that the company, after the confirmatory letter, went on and manufactured, relying on the acts of the defendant. It has been held, however, that “ in order to create an estoppel in pais it must appear that the party asserting the estoppel has been induced by the acts or declarations of the party sought to be estopped to believe the existence of the facts to which the estoppel relates and that he has in good faith acted upon such belief.” {Lawrence v. Brown, 5 N. Y. 394. See, also, Bridger v. Goldsmith, 143 id. 424.) “ The doctrine of estoppel in pais is founded upon equitable principles and is applied to prevent fraud and injustice. It would be a very singular and extraordinary application of the doctrine to apply it for the purpose of preventing a party from alleging an innocent mistake. I cannot find that a party has ever been estopped by a mistake.” {Lawrence v. American Nat. Bank, 54 N. Y. 436.) “ The doctrine of estoppel is applied to promote justice and fair dealing, never to aid a fraudulent purpose.” {Royce v. Watrous, 73 N. Y. 597.) If the defendant’s story is to be cred*62ited, that he was induced by the fraudulent conduct of the plaintiff’s agent to sign the contract, the confirmatory letter, as said, being part of the same transaction, does not present features which would prevent the defendant from alleging the fraud and proving it if he could.
We think, therefore, that the direction of a verdict was erroneous and that the judgment should he reversed and a new trial ordered, with costs to the appellant to abide the event.
Patterson, J., concurred.
Judgment affirmed, with costs.