The parties entered into a contract in writing whereby the plaintiff agreed to furnish certain trade information to the defendant, and the latter promised to pay $50, quarterly, therefor. At the commencement of the second' quarter the payment was not made, and this action was brought to recover the amount then claimed to be due in advance.
Two defenses were litigated, one as, to the entirety of the contract, and another ■ based upon fraud of the plaintiff’s agent in inducing the contract.
While it is without doubt the province of the District Courts to entertain the defense of fraud in an action upon a written instrument (Estelle v. Dinsbeer, 9 Misc. Rep. 485), and while parol evidence to prove the fraud is not open to objection under the rule excluding such evidence to vary the terms of the contract (Smith v. Harris, 7 N. Y. St. Repr. 479), yet here the proof showed only misrepresentation as to the future details of the performance of the contract and hence there was no fraud shown such as could avoid .the agreement. 8 Am. & Eng. Ency. of Law, 637, and cases cited; Kley v. Healy, 9 Misc. Rep. 93.
The justice below distinctly ruled that proof of these misrepresentations was proper and that, if proven to his satisfaction, he would- relieve the defendant from what clearly appears to have been viewed as actual fraud, although throughout if was understood that the misrepresentations were of future intentions, and not of existing" facts.
The. record does not affirm that the judgment-for the defendant was not wholly, or in part, based upon the incompetent evidence hereinbefore alluded to, and for the error of its admission, against the repeated objections of the plaintiff’s counsel, a new trial should result. ■
Judgment reversed and new trial ordered, with costs to the appellant to abide the event.
McAdam, J., concurs.
Judgment reversed and new trial granted, with costs to appellant to abide event. ‘ ~~