Saratoga & Schenectady Rail Road v. Row , 24 Wend. 73 ( 1840 )

By the Court,

Bronson, J.

How the jury could have found upon the evidence that there was any fraud on the part of the agents of the plaintiffs, I am at a loss to discover. But it is unnecessary to consider whether the verdict is against the weight of evidence, for I am of opinion that the case was not properly submitted to the jury.

The defendants refused to deliver the coke on being paid the contract ¡¡ price for transportation, on the ground that the cellar in which the coke lay in New-York, was a few feet further from the water than the clerk of Teall & Co. thought it was at the time the contract was made. Not only the street and the number were mentioned in the contract, but the clerk was invited to go and look for himself before the bargain was concluded. But waiving this consideration, and assuming that he was intentionally misled by the representations of Costigan, though .there is no evidence of that fact, yet, after the bargain was concluded, and after Teall Co. saw where the coke lay, they elected to go on with the contract; and having done so, they are bound by it in relation to the rate of compensation. See Lloyd v. Brewster, 4 Paige, 537. If the alleged misrepresentation had related to some other matter, and the truth had not been discovered until after the [ *76 ] performance of the contract had been Commenced, a different question would have been presented. But when a party has discovered what he deems a fraud before he has entered upon the performance, he must then decide whether he will stop short, or go on with the contract. He cannot say this is a 'good contract for the purpose of authorizing me to do the work, but it does not bind me in relation to the rate of compensation. By going on, Teall Co. affirmed the contract, and they and their agents are bound by it. No case was mentioned, and none, I think, can be found, which sanctions a different doctrine. If Teall & Co. acted under the contract, that must then govern throughout; if they rejected the contract, they then had the plaintiffs’ goods without authority, and were entitled to no compensation for their voluntary services.

It is unnecessary to notice the other objections.

New trial granted.