137 N.Y.S. 863 | N.Y. App. Term. | 1912
This action was brought on an order for books signed by defendant. The order was accepted by the plaintiff, and the books delivered. Thereafter defendant offered to return them, and cancel her order, which offer plaintiff refused.
The only defense relied upon was fraudulent representations by plaintiff’s agent in inducing defendant to sign the order. These alleged representations consisted in the statement by plaintiff’s agent to defendant that her husband would not be angry with her for buying the books. The husband, as a witness, testified that a few weeks before he had refused to buy the books, because he could not afford to, and that he was absent when his wife was induced to sign the order on her own behalf. The alleged statement of plaintiff’s agent to the' defendant was not in any sense of the word a representation of a fact, nor can it be said to have been shown to have been false. It was, at best, a mere expression of an opinion as to a future state of mind of defendant’s husband. It is also significant that in her letter, written about three weeks after she had ordered the books, and offering to cancel the order, defendant made no reference to any false representations.
Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.
