101 N.Y.S. 299 | N.Y. App. Div. | 1906
Lead Opinion
It is apparent that the property was offered for sale at $4,000 and that- the sale was really made at that price, but by collusion between the plaintiff and Newell the price was fixed af$6,000 .to the defendant Richards, and lie was induced to give the note in suit ' by tlie false representations and. suppression of the facts by Newell and the plaintiff. The $2,000 cheek which the defendant Richards
By the fraud practiced upon Richards by the plaintiff and Newell he was induced to give the 'note in suit. It really was without' consideration, because he had already paid one-half of the agreed' purchase price, which was all that he undertook to pay. The alleged fact that the property was worth $6,000 does not- render the fraud nor the damage any less. (20 Cyc. 141.) A party has a right t« make a good bargain and is entitled to the benefit of it. The selling price of this property was $4,000. If it was worth $6,000 the defendant had secured the benefit of $1,000 by a good bargain. He was deprived of that benefit by the fraud of the plaintiff and Newell. The case, therefore, presents the situation. where the defendant has paid all that was due from him on account of the interest he bought in the property. The note, therefore, represents nothing but the fraud, and is without consideration, -which is equivalent to saying under the circumstances that the damage which the defendant sustained by the fraud was the amount of the note. The defendant was not required to rescind the contract, as under the facts shown at the late date of the discovery of the frauda rescission was very difficult. But he had the right to- defend against the ""note upon the ground that it represented no value and was obtained from him by fraud, ór that the damage he sustained by the fraud of the plaintiff was equal to the amount of the note.
It is evident the defendant paid all that was due from him
Parker, P. J., and Chester, J., concurred; Smith, J., concurred in memorandum, in which Cochrane, J., concurred.
Concurrence Opinion
(concurring) :
I concur in the result. Richards agreed to pay $3,000 for an undivided half of the property. One of the material inducements to the purchase ivas the fraudulent representation by Newell that he was to pay $3,000 for the other undivided half. To this fraudulent representation the plaintiff was a party. By reason of such fraud defendant could, upon discovery thereof, rescind and return what he had received upon the contract, or he could elect to ratify the sale and. counterclaim for damages suffered. While the property received has not been wholly returned, an offer to return the same was duly made and declined. This was sufficient. to enable defendant to defend the note upon a rescission duly made.
Cochrane, J., concurred.
■ Judgment reversed upon law and facts and new trial1 granted, with costs to appellant to abide event.