52 A.D. 206
N.Y. App. Div.
1900
Goodrich, P. J. :

Thе decision of the court contains findings of fact which may be-briefly stated as follows: The plaintiffs, on June 18, 1898, entеred into a written contract with the defendant for the purchase of a house and lot for- the slim of $5,800, payable, $500 at the time of *207signing the contract, and $2,800 on the delivery of the deed subject to a mortgage of $2,500 tо run for three years at five per cent interest. The plaintiffs were induced to enter into such contract solely by reason of and in reliance upon representations of the defendant that the premisеs were worth $5,800 ; that the plaintiffs would make a very profitable investment of their money; that the defendant had a responsible tenant ready to lease the store and second floor of the building at the monthly rental of $60; that the defendant personally guaranteed the rent for one year; that all of such representаtions were false and made by the defendant with knowledge of their falsity and for the purpose of decеiving the plaintiffs and ‍‌‌​‌​‌​​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌​‌‌​‌‌​​​‌‌‌‌​​​‌​‍inducing them to enter into the contract; that instead of conveying the premises to the plaintiffs, subject to the described mortgage, the defendant fraudulently induced the plaintiffs to execute their оwn bond and mortgage for the $2,500, and that the plaintiffs immediately on .the discovery of the fraud tendered to the dеfendant a deed of the premises and demanded a return of the $3,300 which they had paid. A judgment was entered оrdering the plaintiffs to reconvey the premises to the defendant and directing the repayment by the defеndant to the plaintiffs of the $3,300 and interest, and that the defendant hold the plaintiffs harmless from any liability upon their bond and mortgage. The defendant appeals from the judgment.

■ The false representations alleged in the complaint were, first, that the property was worth $5,800, and that the plaintiffs would make a very profitable investment of their money, and, second, that the defendant had a responsible tenаnt ready to take the store and first floor for a term of ‍‌‌​‌​‌​​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌​‌‌​‌‌​​​‌‌‌‌​​​‌​‍three years at $60 per month, and that he (the defendant) would guarantee the rent for a year.

As to" the first representation, it is well settled that a false statеment as to the value of property, made by a vendor for the purpose of obtaining a higher priсe than he knows the property is worth, will not sustain an action for fraud by a purchaser who contracts for the purchase in reliance upon such statement; that the purchaser must rely upon his own judgment as to vаlue, and that it is folly to rely upon the representation of the vendor in that respect. (Ellis v. Andrews, 56 N. Y. 83,) In Titus v. Poole (145 id. 414) the court cited the Ellis case as authority for saying: “ It is well settled *208that, a mere nаked representation by a vendor of the value of property sold is to be.regarded as an expression of opinion merely, and will not sustain ‍‌‌​‌​‌​​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌​‌‌​‌‌​​​‌‌‌‌​​​‌​‍an action for deceit, although the representation was known to the vendor to be untrue and was made with intention, to . deceive the purchaser.”

The second rеpresentation, as to the tenant, would have been sufficient to avoid the contract if it had been false and known to the defendant to be false, and if also the plaintiffs had relied thereon and were induced thereby to enter into the contract. There was evidence tending to show that the defendant-reprеsented that he. had such a proposed tenant, and the defendant admitted substantially that he told the plaintiffs that he had such a proposed tenant. One of the plaintiffs testified that after the deed had been еxecuted and delivered on the 22d of June, 1898, he asked the defendant about this tenant and was told that he would bе over the next day, and that a man (whom, however, he did not identify as Bruce) came to him and said that he was going to take the place. The defendant produced Bruce,, who testified that he called on the dеfendant about the middle of June and proposed to him to take the store and first floor at the rate оf sixty dollars per month, provided he could have a three years’ lease; that about a week thereafter he received, a letter from "the defendant asking him to call and was informed that he had sold the property; that Bruce told him he “ was satisfied to take it on a three years’ basis, and have him (the defendant) to'make an appointment with the owner to draw up "a lease; ” that the defendant came to seе him about a week after. Bruce was asked: “ Q. Was there any appointment made for you to meet аnybody ? [Objected to ; objection sustained ; defendant excepts.] Q. Did you again go to Mr. Plaisantin’s office fоr the purpose of executing a lease -of the premises ? * * * I again went to Mr. Plaisantin’s office. Q. For whаt purpose ? [Objected to; objection sustained; defendant excepts.] * * * Q. Did Mr. Plaisantin ask you at. any time to execute a lease of those premises? [Objected to; objection sustained ; defendant excepts.] ”

The evidence sought by these questions was improperly excluded. The questions were calculated to educe testimony tending to show that ‍‌‌​‌​‌​​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌​‌‌​‌‌​​​‌‌‌‌​​​‌​‍the second representation; upon which the plaintiffs found thеir allegation of fraud and misrepresentation, was in fact true. If *209true, the plaintiffs have no cause of action. The rejection of the evidence constitutes reversible error, and we do not, therefore, consider other questions involved in the record.

The judgment should be reversed and a new trial granted.

All concurred.

Judgment reversed and new trial granted, ‍‌‌​‌​‌​​‌‌​‌‌‌‌​​‌​‌‌​‌‌​​‌​​‌​‌‌​‌‌​​​‌‌‌‌​​​‌​‍costs to abide the event.