34 N.Y.S. 1060 | N.Y. Sup. Ct. | 1895
This action was brought for the foreclosure of a mortgage. The premises first described in the complaint were conveyed by the plaintiff to the defendant Sarah Hill, and this mortgage, of even date with the conveyance, was given to secure the full amount of the purchase money; but it included other premises, which are secondly described in the complaint, which were not so conveyed by the plaintiff. The property so conveyed by the plaintiff was a mill site, and was purchased to be utilized as a water power in connection with an electric light company, which was to be thereafter organized. The defense to the action is that the representative of the plaintiff who negotiated the sale misrepresented the capacity of the water power by stating that it was 100 horse power, when in fact there was less than that amount, and that in consequence thereof the defendant Charles Hill was obliged to abandon the proposed enterprise. The property was sold by the plaintiff to Francis C. Hill under a four-months option, which was dated and commenced to run on the 19th day of October, 1891. The deed from the plaintiff contains no covenants in respect to the water power, or as to the character or condition of the mill property; and there is no allegation of fraud in the answer, and there was no proof or claim of fraud upon the trial. The action was tried in the county court of Suffolk • county, and the. usual decree of foreclosure and sale was ordered and entered, and from that judgment the defendants have appealed.
Assuming that the representations respecting the water power were made according to the testimony of the defendant Francis C. Hill, it is to be remarked that the matter was not peculiarly within the# knowledge of the person who made them; and it does not appear that any artifice was employed to conceal the condition of the property, or to prevent an inspection and examination of the mill pond to ascertain all the facts. On the contrary, the fact that an option of four months was given to the purchaser, during which period he had ample time and opportunity to examine the property, and ascertain its precise capacity and condition, is an evidence of the absence of an intention to smother inquiry or prevent the acquisition of knowledge respecting the property. Moreover, the purchaser was notified during the pendency of the option of doubts whether the pond would furnish 100 horse power. He was therefore put upon his inquiry, and closed the purchase thereafter. . We are therefore forced to the conclusion that ordinary care would have disclosed the