The appeal purports to be from the judgment only, and the record contains no order denying the plaintiffs motion for a new trial. Thus we are precluded from at all inquiring into the weight of the evidence. Code Civ. Pro., §§ 1344, 1346, 1347; Boos v. World Mut. L. Ins. Co., 64 N. Y. 236, 242.
The evidence was conclusive that the person who solicited the contract sued upon was employed by the plaintiff for such purpose. Such was the plaintiff’s attitude upon the trial, and consistently therewith the fact was assumed by the trial justice in his charge to the jury. By no objection or request did the plaintiff raise any question concerning such agency or the sufficiency of the evidence to support the defense, that the contract was induced by the misrepresentations of such agent, and it is too late to raise either of these questions for the first time on appeal. Osgood v. Toole, 60 N. Y. 475.
We are, therefore, only to review the objections and exceptions taken to rulings upon the trial.
The action was upon a contract in writing whereby in terms the defendant promised to make monthly payment, at the rate of twenty dollars per week, for the insertion of its business advertisement in certain theatrical programs for the season of 1901-1902, a period of about twenty-five weeks; and the defendant, admitting an oral agreement for four weeks, contended that its manager was induced to sign the writing by the representation of the plaintiff’s soliciting agent that it conformed to the oral understanding.
Upon the direct examination of the defendant’s manager he was asked, “Would you have signed the contract if you had known that it was a contract for the theatrical season? Did you or didn’t you sign it relying on the statement that it was a contract for only a month? ”
These questions were severally objected to and allowed, and properly so. They called for proof of a subjective fact, the mental attitude of the manager respecting the statement made to him, his reliance upon the representation concerning the contents of the writing, and though his answers were not conclusive, the fact was material to the *186defense. Thorn v. Helmer, 2 Keyes, 27; 4 Abb. Ct. App. Dec. 408; Trankla v. McLean, 18 Misc. Rep. 221.
The trial justice charged the jury: “ Row, if you believe that that statement (referring to the plaintiff’s agent’s representations that the writing called for an advertising period of four weeks only) was made by the canvasser to the defendant’s representative (the manager), the defendant’s representative had a perfect right to rely on that statement, and it was not necessary for him to read the terms of the contract,” to which exception was taken, but this is equally unavailable for reversal.
The contract was prepared by the plaintiff’s canvasser. He, therefore, was properly assumed to have been familiar with its contents. When he misrepresented these, he intended that his statements should be credited by the defendant’s manager.
He succeeded and it did not thereafter rest with him or his principal to urge that the defendant’s manager should have suspected his veracity.
The law has not yet given, and is not likely to give, an abiding place to any doctrine that the victim should do penance in his deceiver’s triumph. Conceding that the defendant’s manager was guilty of overweening confidence, yet he did only what the plaintiff’s agent intended he should, and since he was under no duty to suspect, he had a right to rely upon the agent’s statements.
We know of no rule of law which compels distrust. “A person deceived by the fraudulent misstatements of another, owes him no duty of active vigilance in the discovery of the fact that they are false; where, by means of that character, he deceives another to his prejudice, there is nothing in the law requiring him to be protected from the consequence of his wrong, because the person imposed upon did not suspect him, and adopt some means to discover the imposition.” Brown v. Post, 1 Hun, 303; affd., 62 N. Y. 651; Baker v. Lever, 67 id. 304, 309; Delano v. Rice, 23 App. Div. 327. Obviously, this case is to be distinguished from a case where the representations made were understood to *187be not within the personal knowledge of the person making them. Schumaker v. Mather, 133 N. Y. 590.
It appeared in evidence that the defendant, upon discovery that the writing called for an advertising period excessive of four weeks, repudiated the contract but that notwithstanding the plaintiff proceeded to act under it by continuing the advertisement, and the plaintiff’s counsel asked the court to charge “ that if the defendant received and accepted any benefit ” under the contract “ after they had information as to any fraud existing in it, they would be held to confirm it.”
Since the record fails to show support for any other, the claim of benefit presumably related to possible business advantages to the defendant as incidental to the continuance of the advertisement after the defendant had directed its discontinuance.
The exception to the court’s refusal to charge as requested is not urged for reversal, and indeed, it is without merit, the instruction asked for having been plainly pointed to permit the jury to speculate as to the defendant’s receipt of benefit.
The court, however, did charge as requested, with the amendment that the defendant’s acceptance of benefit must have proceeded from its violation and not merely from the plaintiff’s insistence of performance after the defendant’s repudiation of the contract; and, as so made, the accuracy of the charge is not open to debate, unless perhaps, on the ground of irrelevancy, as to which, however, the plaintiff is precluded, since the charge only stated in perfected form that which the plaintiff had requested to be imperfectly stated.
The judgment appealed from should be affirmed, with costs.
Freedman, P. J., and Blanchard, J., concur.
Judgment affirmed, with costs.