On the facts found by the referee the plaintiff was entitled to judgment. The original agreement for the sale of the property was not in writing, but it was performed by the plaintiff when he executed the conveyance, and the defendant, who took the benefit of the contract was bound to fulfill it on his part. Thomas v. Dickinson. 2 Kernan, 364. He agreed to pay $5,525 as the price, and $2,500 of this amount has neither been paid by him nor released by the plaintiff. Five thousand dollars of the purchase-money was to have been paid in stock of the Mutual Bank of Oastleton. He paid half the amount in that stock, and the delivery and acceptance of this scrip reduced pro tanto the amount of his liability, but did not extinguish it as to the residue.
At the time the conveyance was executed and delivered, he was not prepared to transfer the stock as he had agreed: he induced the plaintiff to accept a covenant, the purpose of which, on his part, evidently was to merge the original agreement under the pretense of fulfilling it, and by this device to defraud the plaintiff of $2,500 of the purchase-money. To this end he gave the plaintiff to understand, as well at the time of the original agreement as at each' of the subsequent transactions, that the scrip he was to receive represented, in fact, full paid stock to the amount of five thousand dollars; and this he knew to be false. He afterwards induced him, by the same fraudulent means, to surrender this covenant on receiving a certificate, nominally for fifty shares of one hundred *484dollars each, but really representing only half that amount of stock.
If the liability of the defendant depended on his written consent, he would still be responsible for the remaining $2,500 of stock. In that instrument he agreed to transfer to the plaintiff five thousand dollars of the stock of the Mutual Bank, and this agreement he has only in part performed. He can derive no aid from the adroit and slippery language of the subjoined guaranty. One who uses words in a deceptive and double sense, for the purpose of misleading the party with whom he contracts', is bound by them in the sense in which he intended they should be understood. Hoffman v. Ætna Ins. Co., 32 N. Y., 405; Barlow v. Scott, 24 id., 90; Mowatt v. Lord Loudensborough, 3 Ellis & Blackburn, 334.
The surrender of the covenant, having been procured by the fraud of the defendant, cannot shield him from liability. It is true that the terms of the stock certificate put the plaintiff'upon inquiry; but he made the inquiry' promptly, and the defendant, knowing the truth, deceived him. Mead v. Bunn, 22 N. Y., 275; Williamson v. Brown, 15 id., 354; Sharp v. Mayor of New York, 25 How., 390 ; Bradley v. Bosley, 1 Barb. Ch., 125 ; Cooke v. Nathan, 16 id., 342.
But there was no merger of the parol agreement to pay the stipulated price. The subsequent writings signed by the defendant neither superseded nor extinguished his previous undertaking; and oral evidence was properly received to show the terms of the unwritten contract, and to expose and defeat the fraud attempted to be practiced by means of these writings, under color of carrying out his original engagement. Hutchins v. Hibbard, decided in this court at the last December Term; Bradley v. Bosley, 1 Barb. Ch., 152; Johnson v. Milns, 14 Wend., 195; Morris v. Witches, 20 N. Y., 41.
Upon the state of facts established by the proof, and found by the judge, the motion to dismiss the complaint *485was properly denied. We have no authority to reverse the judgment, by reason of defects in the pleadings, which did not affect the substantial rights of the defendant. Code, § 176. The averment, in the complaint, that the original agreement was in writing, was not sustained by the proof; but we are bound to treat the variance as immaterial, in the absence of affirmative evidence that it misled the adverse party. Code, § 169. The gravamen of the allegation was that such an agreement was made; and the question whether it was written or oral was unimportant, except so far as it affected' the mode of proof. The judge was therefore at liberty, without directing an amendment, to find the facts in accordance with the evidence. Code, § 171. The findings were within the scope of the allegations, and there was no failure of proof within the meaning of the Code. Upon the facts alleged, the plaintiff was entitled to equitable as well as legal relief; and, as he demanded both, the judge was right in awarding that which seemed appropriate to the case made by the proof. Emery v. Pease, 20 N. Y., 62, 64; Bedford v. Terhune, 29, How., 422; Lounsbury v. Purdy, 18 N. Y., 515 ; Byxbie v. Wood, 24 N. Y., 607.
Other exceptions were taken on the trial, which it is not material to discuss, as they are all plainly untenable. The cause was well tried and the judgment should be affirmed.
All the judges concurring.
Judgment affirmed. ,