122 N.Y.S. 740 | N.Y. App. Div. | 1910
This is an-action by a vendor in an executory contract for the sale of. real estate to require specific perf ormarice thereof by his grantee
The answer alleges fraud on the part of the plaintiff in representing that the farm contained forty-tight acres when in fact it contained only forty acres. The learned county judge has found as a fact that no such fraud was perpetrated. This finding is challenged by the defendant.
The defendant applied to a firm of real estate agents for.the purchase of a farm containing from fifty to one hundred acres. They offered him the farm in question and represented that it contained forty-eight acres. Their information was obtained from a former owner who, without their knowledge, in the year 1906 had sold the farm toXplaintiff. On discovering that plaintiff was the owner they placed, themselves in communication with him, and he offered to sell the farm with the stock and implements thereon for $6,500. Defendant went over the property on two or three occasions and made a careful examination thereof. He was introduced to the plaintiff by one of the real estate agents and after some negotiations and considerable difficulty in reaching an agreement as to the price, which' agreement was finally effectuated only by the agent
When plaintiff bought the farm in 1906 he procured a certified search thereof' showing that it contained forty acres, which search, with the subsequent additions necessary to bring it down to the time'of the transaction in question, was the same search which he tendered to the defendant in fulfillment of his contract. Plaintiff also testified that he bought the farm “ for forty acres; ” .that he read the contract wherein he.agreed to deliver to the defendant forty-eight acres, more or less, and that he “ did not tell defendant there wasn’t forty-eight acres of that property there.”
It thus appears that with knowledge that the farm did not contain more than forty acres plaintiff sold it to the defendant representing that it contained forty-eight acres. Ordinary business fairness required that. plaintiff should state accurately in his contract the size of his farm as he understood it. The statement in the contract that it contained forty-eight acres was false and was known to the plaintiff to be false, and, willing that the defendant should rely thereon and be deceived thereby, he permitted the latter to rest under such misunderstanding when.it was his plain duty both, in law and ethics to correct the statement which he knew to be false and prejudicial to defendant. In my opinion the facts constitute a ease of fraud, and the finding of the County Court to the contrary was not only against the weight of évidence but is against the admitted facts. It is of no consequence whether or not the plaintiff is responsible for the misstatement of the • real estate agents. He is responsible for his own misconduct in selling forty-eight acres when he was aware that he had no right to represent more than forty acres in the contract which he signed.
The fact that the sale of this farm may have been in bulk and not with reference to the exact acreage does. not affect this ques
But it is said that the discrepancy in the quantity of land was neither essential nor important. This farm Was composed entirely of tillable lands, homogeneous in respect to quality. Clearly, forty acres does not possess the same value as forty-eight acres of the same kind of land. If evidence to that effect is necessary, such, evidence was introduced at the trial. . Defendant- was seeking a farm of from fifty to one hundred acres. He supposed he was purchasing about fifty acres, when in fact he was receiving less than forty acres. It was only after strenuous efforts that the minds of the parties met as to the purchase price. It cannot be said that the difference in acreage did not influence the defendant in making this contract. Plaintiff is in no position to urge that argument after having willfully withheld from the defendant correct" information as to the acreage. The only rational explanation of his conduct is that in his opinion if he told the truth he might lose the sale, and his argument now that his deception was immaterial is at war with his conduct in practicing such deception. The same argument might have been used in Thomas v. Beebe (supra), where the discrepancy in acreage was not as great as here in proportion to the land involved.
It is further contended that the defendant, by remaining in possession of the farm after knowledge of the fraud, has- placed it out
It is. said that the contract was prepared for plaintiff by his agent, and. that the plaintiff in signing it did not realize the consequences of liis. act. We. are glad to adopt this-view of the case, because,. while it does not relieve plaintiff of the-legal effect of his. act, it exonerates liim from the charge of intentional wrongdoing.
The-judgment should be reversed on the law and facts and a new trial granted, with costs to the appellant to abide the event:
All concurred.
Judgment reversed on law and facts and new trial granted, with costs to appellant to abide event.