Gargiulo v. Labate

¶1Action for judgment directing defendant specifically to perform an agreement, to deliver to plaintiff a bond and mortgage and to execute and deliver to plaintiff *1050a satisfaction of said mortgage, in which action defendant counterclaims for rescission. Judgment for plaintiff reversed on the facts and new trial granted, with costs to abide the event. A sharp issue of fact was presented as to commission of fraud on the part of plaintiff in representing to defendant that the mortgage had been extinguished and was worthless. Determination of this issue was peculiarly one for the trial court, which had seen and heard the witnesses, but in making its determination the court committed error in finding that the sentence in the instrument, “ Will send Satisfaction & Mortgage by Mail”, had not been inserted after its execution and delivery. In our opinion, that finding was contrary to the weight of the credible evidence. The credibility of plaintiff not only is seriously thereby affected but the surreptitious insertion of the word “ Satisfaction ” must be given consideration as an element corroborating the version of defendant as to the representations inducing him to execute and deliver the instrument. Lewis, P. J., Hagerty, Carswell, Johnston and Adel, JJ., concur.