The defendants ask us to settle the practice relating to the certification of appeals and to hold that when an application is made for leave to appeal and the Appellate Division certifies questions to be passed upon by the Court of. Appeals, it should certify such questions as will finally determine the litigation, no matter by whom they were suggested.
W e cannot control the right or form of certification, as the power to certify is conferred upon the Appellate Division by the Constitution, and it is the sole judge of the proper method of exercising that power, although we can decline to answer the questions certified under certain circumstances, as we frequently do. An appeal by permission is not a right but a privilege. If the questions certified are not satisfactory to the party who desires to appeal, he need not avail himself of the privilege extended, but in a case like this can wait until
The first question certified in behalf of the defendants is as follows: “ Was the judgment authorised by the evidence and findings of the referee ? ”
The question is not whether the evidence supports the findings or the findings support the judgment, but whether the evidence and findings together support the judgment. "We cannot find facts, but where the evidence is undisputed we may presume that certain facts were found although not expressed. The rule is that when a fact is not expressly found and no request is made upon the subject, an appellate court will presume in support of the judgment but not to reverse it, that such fact was found provided it was conclusively proved and tends to support the express findings. Only to
The findings prepared for the judgment roll are but few in number for so complicated an action, but after they were signed and filed, pursuant to an order of the Special Term inadvertently made but not appealed from, many proposed findings, consisting mainly of evidential facts passed upon by the referee, were added and these additional findings cover about one hundred pages of the appeal book. lie rendered judgment rescinding the contract on the theory that it had been continuously violated in all essential particulars by Powers and Mansfield and that they had repudiated from the outset a binding part thereof. He had power to decree rescission on either of these grounds without finding fraud. While the complaint alleged both fraud in making the contract and a continuous breach and repudiation thereof as the grounds upon which it should be rescinded, the referee rejected the allegations of fraud and proceeded to judgment upon the allegations of breach and repudiation. Eescission was the object of the action, and the plaintiff had the right to allege as many grounds for rescission as he saw fit. He could allege in the same complaint fraud in entering into the contract as one ground for rescission, the continuous and substantial breach of the contract as another ground, and the repudiation of a material stipulation as a third ground. In other words, he could allege as many grounds as he thought he could prove, and the defendants take nothing from the fact that he failed as to fraud when he succeeded upon the other grounds. It is not essential that the repudiation as to the extension of the road to Lake Placid should be a valid ground of rescission, as held below with the support of a strong argument by the presiding justice, provided the constant and substantial breaches in other respects were sufficient to authorize the judgment
We think the facts found expressly, without aid from implication, support the judgment, and that the evidence supports the findings. There is no hard and fast rule on the subject of rescission, for the right usually depends on the circumstances of the particular case. It is permitted for failure of consideration, fraud in making the contract, for inability to perform it after it is made, for repudiation of the contract-or an essential part thereof and for such a breach as substantially defeats its purpose. It is not permitted for a slight, casual or technical breach, but, as a general rule, only for such as are material and willful, or, if not willful, so substantial and fundamental as to strongly tend to defeat the object of the parties in making the contract. Failure to perform in every respect is not essential, but a failure which leaves the subject of the contract substantially different from what was contracted for is sufficient. If the party who seeks rescission has an adequate remedy at law, ordinarily he is not entitled to rescind, but in case of repudiation, or of a breach going to the root of the contract, unless the damages can be ascertained with reasonable certainty, rescission is a matter of right, with restitution instead of compensation. In this case -the failure to perform was of a most substantial character and pervaded almost the entire contract. The road was not transformed into an electric road, nor extended to Keeseville, nor connected with the dock at Port Kent. It was still a steam road and for all practical purposes in the same condition as before the contract was made, but it had been incumbered for nearly three times the amount of the original issue of stock and bonds and the proceeds converted to their own use by Powers and Mansfield. There was such a failure to perform the substance of the contract as to defeat its purpose in nearly every, essential respect. Even if an action at law were possible to a
The first question certified in behalf of the defendants, as. already construed, should be answered in the affirmative.
The second question presented by the defendants’ appeal, “Is the judgment secundum allegata,” requires brief attention. While every fact found is alleged, it cannot be said that the judgment accords with all the allegations of the complaint, for it was'not according to the allegation of fraud. As already appears, however, it is in accord with the allegation of repeated and fundamental breaches of the contract sought to be rescinded. As we have shown, this is sufficient to
The defendants’ third question relates to conversations between Powers and Mansfield and the officers and directors of the railroad company before and at the time of making the contract. It is claimed that these conversations were incompetent, because they were merged in the written contract, according to the familiar rule. The plaintiff, however, had alleged fraud as a ground of rescission, and he had a right to prove the existence of fraud if he could. On that issue the contemporary and preceding conversations, both those involving representations and those tending to show that the directors relied upon them,"were competent, and although the plaintiff did not succeed on the issue of fraud, still the receipt of that evidence vzas not error. (Thomas v. Soutt, 127 N. Y. 133, 137.) Moreover, the evidence could not have injured the defendants, because the judgment did not change or modify the contract in any way. It acted on the contract as made and rescinded it for causes occurring after it was made. The third question, therefore, should be answered in the negative.
The question certified in behalf of the plaintiff is as follows : “ Was the relief properly conditioned on payment or provision for payment of the expenditures made after the action was brought ? ”
By the original judgment the plaintiff was required to pay back all that had been expended prior to the commencement of the action and to restore or permit the removal of all property delivered to the railroad company after that date, which could be removed without injury to the plant. This left the parties in statu quo as far as possible. By the modified judgment he was required to pay in addition to the amount expended before the commencement of the action all that was expended thereafter and down to the date of judgment. This placed a burden on the plaintiff that the law does not require.
The order of the Appellate Division should be reversed
Cullen, Oh. J., Gray, Haight, Werner, Hiscock and Chase, JJ., concur.
Ordered accordingly.