Legal Opinion

Ellis v. McCormick

New York Court of Common Pleas

Decided May 15, 1857PublishedCited by 4 opinions

Appeal by defendant from a judgment of tbe Sixth District Court. This was an action against tbe defendant as surety upon a lease. The lease was made by tbe plaintiff to one Francis Crossin, for five years from tbe 1st of May, 1854. It was in evidence that tbe defendant could neither read nor write, and be signed tbe agreement as surety with bis mark.

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Appeal by defendant from a judgment of tbe Sixth District Court. This was an action against tbe defendant as surety upon a lease. The lease was made by tbe plaintiff to one Francis Crossin, for five years from tbe 1st of May, 1854. It was in evidence that tbe defendant could neither read nor write, and be signed tbe agreement as surety with bis mark. On the lease was indorsed an agreement by tbe landlord, tbe plaintiff, to put blinds on all tbe front windows within thirty days. This agreement was dated tbe same day as tbe lease, and recited that it was made in consideration of tbe letting.…

1Opinion of the Court

Beady, J. —

It is a settled rule of law, and followed in equity, that fraud will never be presumed, but must be clearly estab lisbed by proof. Story on Contracts, 505 (3d ed.), § 499. And although a party may sometimes be relieved from a mistake in regard to a material fact affecting or modifying tbe contract, tbe proof of mistake must be established with equal clearness. It is not sufficient, to avoid a contract, that tbe party bound is unlettered, and that tbe contract was not read to him. Harris v. Story, 2 E. D. Smith, 363. It is sufficient if it be explained in substance, and there was no…

2Cases cited1 opinion

  1. Colemard & Kleffler v. LambNew York Supreme Court · 1836

3Cited by4 opinions

  1. Coe v. . CassidyNew York Court of Appeals · 1878
  2. Ullmann Realty Co. v. HollanderCity of New York Municipal Court · 1910
  3. Williams v. WilsonAppellate Terms of the Supreme Court of New York · 1896
  4. Haviland v. JohnsonNew York Court of Common Pleas · 1877

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