(8 Misc. Rep. 106.)

#### WHITE v. LOWDEN et al.

(Supreme Court, Special Term, Erie County.

April 25, 1894.)

1. Canceling Contract—False Representations.

A contract to purchase land will he canceled, as procured by fraud, where the vendor’s agent went to the purchasers, who lived at a great distance from the land, and represented to them that it was cheap at the price offered, that the surrounding property was held for higher prices, and that within a short time they could make a handsome profit on their investment, and the purchasers relied on such representations.

2. Vendor and Purchaser—Caveat Emptor.

A purchaser who lives a great distance from the land sold may rely on the representations of the vendor’s agent, and need not make a personal inspection of the land.

Action by Jonas J. White against John Lowden and others to foreclose a contract for the sale of land in Erie county. The defense alleged was fraud, and false representations as to the subject-matter of the contract, and counterclaim for damages. Judgment for defendants.

George Clinton, for plaintiff.

George H. Frost and William L. Woodcock, for defendants.

WARD, J.

The plaintiff resided in Buffalo, 1ST. Y., and the defendants interested in the contract all resided at or near Altoona, in the state of Pennsylvania,—a distance of about 375 miles, by the usual traveled route, from Buffalo. On the 16th of April, 1892, the plaintiff was the owner, subject to a $10,000 mortgage, of 23 acres and about a half of land situate between the northern corporate limits of the city of Buffalo and the southern corporate limits of the village of Tonawanda, in the county of Erie, If. Y.; said limits being from three to four miles apart, and the lands situate about midway between them, being on lot 39, fronting east on Delaware avenue, and extending west, across Elmwood avenue, to the Military *620road. The plaintiff intrusted one William K. Johnson, a real-estate broker in Buffalo, who had been in the business there a year or two, and who was familiar with the property, and the lands surrounding it, to sell or syndicate the property, and for which service Mr. Johnson was to receive $100 per acre. About the 16th of April aforesaid, a contract was prepared in Buffalo for the sale of the lands at $2,800 an acre, payable in monthly payments, covering a period of 14 months, after a payment of about $3,000 down, and at the end of which payments a bond and mortgage were to be given for the balance on the property, of $10,000. The contract was all complete, except the names and signatures of the purchasers, having been signed and sealed by the plaintiff and delivered to the said Johnson. Johnson proceeded to Altoona, where he had some friends, obtained an introduction to the defendants, and had personal interviews with seven of them, and an interview with a cousin of the eighth, who represented Mrs. Bysart,—a lady defendant. None of these defendants had any knowledge of the property in question, or its surroundings, and were therefore obliged to rely entirely upon Johnson’s statements as to the quality, amount, value, and condition of the land and of the surrounding territory, and of the prospects as to the advance of land in the future. Johnson represented to all of these parties that he was authorized, as the agent of the plaintiff, to sell the premises, and pointed out to them, substantially, its location upon a map or paper which he had, and told them that nearly all of the lands in the vicinity, and surrounding the premises, had been taken or bought up, and were held for higher prices than $2,300 per acre; that the premises were worth that amount per acre; and that it was low at that price. There were some variations in his statements to the several defendants, but not to any great extent, which appear in the findings of fact herein. In addition to these statements, he gave most encouraging accounts of the future prospects of the territory between Buffalo and Tonawanda, and expressed the opinion that the defendants would be able to realize, within a short time, a handsome profit on their investment, by resyndicating it, or otherwise. The statements of Johnson as to the value of the property, and the value of surrounding property that was held for higher prices than $2,300 per acre, made such impressions upon the defendants that they entered into the contract, relying upon the truthfulness of the same. How much importance they attached to Johnson’s statements as to future prospects does not clearly appear; but that they did rely upon the other statements, and, without such statements, would not have entered into the contract, was manifest, from the evidence. Johnson returned to Buffalo, with his contract signed; and the defendants, without making further investigations, of importance, as to the property or as to the truth of the representations made to them, made six monthly payments upon the contract, commencing with April 16, 1892, and ending September 16, 1892; paying, in all, $17,660.40. After the September payment, they began to discover that fraud had been perpetrated upon them, through the representations of Johnson. They refused to make further payments, and repudiated the contract, for fraud; and in February, following, this, *621action was commenced, setting np the contract, the amount paid thereon, the amount stül due thereon, and demanding, performance on the part of the defendants, or, in case of their faüure to perform, that the contract be foreclosed, and the defendants deprived of all right and equity in the contract. The defendants answered, alleging that they were induced to enter into the contract by means of ■these representations, which were false and fraudulent, and asked that the contract be rescinded and canceled for such fraud, and they recover, as damages, the amounts paid by them upon the contract, with interest. The defendants had never had possession of the property, or received any benefits therefrom. These issues were tried by the court at special term, and upon the trial the defendants, by an instrument in writing, offered to surrender and reassign to the plaintiff all right or claim they might have under the ■contract to the land, and tendered the said instrument to the plaintiff, which he refused to accept.

It is strenuously contended by the learned counsel for the plaintiff that the statements of Johnson as to the value of the land were mere expressions of opinion, and, as such, cannot be considered, in any sense, as representations of fact. While it is true that mere statements as to the value of property in negotiations for sale, standing alone, and disconnected from other statements, and not made with a fraudulent intent, and where the subject of the representations is equally open to all parties for examination, and where the party making the representations has not special or superior knowledge to the other, and is in no sense speaking as an expert, such statements do not form a ground of action; but where the parties do not stand upon equal ground, and the situation is such that the purchaser has not the same opportunity of foriping an opinion as the seller, or there are circumstances which place the seller in a position to know the condition, qualities, or values of the property, over and above those enjoyed by the purchaser, and the purchaser must, to a greater or less extent, depend upon the judgment or opinion of the seller, in reaching his own conclusions as to whether he wül make the purchase, and the seller’s statements do not appear, upon their face, unreasonable, and the purchaser ha's not fair and present opportunity to see for himself, and the seller knows that the purchaser relies, or has reason to believe that he relies, upon his statement, and the statements are made that he may rely upon them, then the statements as to the value may become statements of fact, and may be so found by the court or jury; and if such statements are false, and made with the intent to defraud, and do defraud, the purchaser, they vitiate the transaction into which they enter, and subject the seller to damages. In Simar v. Canaday, 53 N. Y. 298, the court, speaking through Folger, J. (at page 30G), uses this language:

“The defendant contends that the representations alleged to have been made by the defendant were not such as to afford a ground for an action. It is first insisted that the statements as to the value of the land, and of the mortgages thereon, were mere matter of opinion and belief, and that no action can be maintained upon them, if false. If they were such, no liability is created by the utterance of them. But all statements as to value of property sold .are not such. They may be, under certain circumstances, affirmations of fact. *622When known to the utterer to be untrue, if made with the intention of misleading the vendee, if he does rely upon them, and is misled to his injury, 'they avoid the contract [citing Stebbins v. Eddy, 4 Mason, 414-453, Fed. Cas. No. 13,342], and where they are fraudulently made, of particulars in relation to the estate which the vendee has not equal means of knowing, and where he is induced to forbear inquiries which he would otherwise have made, and damage ensues, the party guilty of the fraud will be liable for the damage sustained [citing several cases].”

The same court, in Hickey v. Morrell, 102 N. Y. 463, 7 N. E. 321, confirms this view, and cites with approval the last case cited. Nor is the case of Ellis v. Andrews, 56 N. Y. 83, in conflict, as none of the exceptional circumstances in this case appeared in that. The same remark is true of Long v. Warren, 68 N. Y. 426, cited by the plaintiff’s counsel, although the authority of that case was seriously questioned in the later case of Institution v. Burdick, 87 N. Y. 40, 49. And in Schumaker v. Mather, 133 N. Y. 590, 595, 30 N. E. 755, the court of appeals cites with approval, on page 595, 133 N. Y., and page 755, 30 N. E., the views quoted from Simar v. Canaday, supra, and criticises that of Long v. Warren, supra. And in Cullen v. Hernz, 13 N. Y. St. Rep. 334, 335, Judge Daniels says:

“But while it is true that, for a mere opinion expressed by one person to another as to the value of the property, no liability would be created against the person expressing it, when it turns out that he was mistaken, still the law will not exonerate him if he resort to that mode of expression, knowing the opinion to be unfounded, with the object of deceiving the person to whom it may be expressed, to his or her prejudice.”

The fact that Johnson represented before the execution of the contract by the defendants to each of them, in effect, that he was familiar with the property and its value, and that it was worth at least $2,300 per acre, stating to most of the witnesses that it was low, or very low, at that price, appears overwhelmingly from the evidence, and was admitted by Johnson upon the stand. This statement of value was coupled with the further statement that all, or nearly all, of the land surrounding, and in the vicinity of, the property had been taken up, and was held for higher prices than the $2,300 per acre, and that the property in question was about the cheapest remaining, and the last opportunity for investment; and he went further, and stated to some of the defendants that the lands so taken up embraced substantially all the land along the avenues mentioned in the contract. There can be no question but what these statements as to the surrounding property were statements of fact, and not matters of opinion, and that they were relied upon by these defendants, and formed a part, if not the leading, inducement in the purchase of the property. To a person unacquainted with the localities, this condition of the surrounding property would naturally have a powerful influence in determining the action of the purchaser. If it be true that persons familiar with this property, and with its surroundings, had invested money to a large extent in property in the vicinity, and would not sell as low as $2,300 per acre, it would go a great ways to establish the market value of the property in question at the figure at which the defendants purchased it. So, if we leave out altogether the testimony as to Johnson’s statement of value, we still have a substantial representation of facts upon which the defendants relied, and had *623a right to rely, in the purchase of this property. It is true that Johnson denies these statements as to the surrounding property, but his denial can have but little weight against the concurrent testimony of seven of the defendants, and Mr. Pennock, the agent of Mrs. Dysart, to the contrary. I avíIÍ assume, therefore, that Johnson made these statements as to the surrounding property. Were they true? I am satisfied they were not. The evidence, clearly, is that the great bulk of the land in the vicinity of the said 23 acres was not held for higher prices, and was not worth to exceed $1,000 or $1,200 per acre. And the preponderance of evidence is decidedly to the effect that the 23 acres were not worth the $2,300 per acre at the time of the contract, or at any time thereafter; that $1,000 to $1,200 per acre was its fair value at the time of the sale. And I am led to the conclusion that the statement of value of the property in question, under all the circumstances, and connected with the other statements as to the surrounding property, went beyond the mere expression of opinion, and amounted to an affirmation of fact. The plaintiff’s contention, at this point, is that the value of all these lands was speculative; that the intrinsic value was only Avhat they would be worth for farming purposes; and that the defendants understood they were speculative, and therefore a statement as to their value was speculative, and not to be relied upon. I cannot concur in this view. If this were so, then all lands that were not actually used for building purposes in cities or villages, or in their suburbs, and whose values depended upon the surroundings, and the probable use in the future to be made of them, might be regarded as speculative. So all land in the vicinity of cities or improvements of various kinds, that is at present only used for farming purposes, and not yet adapted to other purposes. The present value of property depends upon what it will bring in the market; and whatever influences surround it, conditions adhere to it, or prospects attend it, that form a well-grounded belief in the minds of the public as to its value, impart a .value to it. So that when a man who is familiar with real estate, as Johnson was, and engaged in the business of selling it, and assuming to-have peculiar knowledge in relation to it, represents to a far-off people who have no opportunity to examine the property, or ascertain the conditions that surround it, that its value is a certain amount, it ceases to be speculative, and becomes an affirmation of fact; that is, a fact based upon his knowledge and experience and judgment, all of which he is supposed to marshal together as a basis of his statement as to the value.

The counsel for the plaintiff, realizing the difficulty of applying the rule of caveat emptor to these defendants, says they might have gone to Buffalo while the negotiations were pending, as they had but a night to ride, and have seen this property for-themselves. The law did not impose any such duty upon these defendants. Had they gone to Buffalo, they could have learned but little about it, except they spent considerable time in the investigation of the property, its value, and surroundings; and it does not lie in the mouth of the plaintiff to say that he is protected from the fraudu*624lent statements of Ms agent upon any such, hypothesis. The defendants, situated as they were, had the right to rely upon those statements, and did rely on them, and- they were false. They worked an injury to the defendants. Johnson must have known they were false, or at least higMy exaggerated. He assumed to state that they were true. He assumed to know to these defendants that they were true. If he did not know the exact facts that he represented were true (as he claimed upon the stand), he should have known them; and as he represented them to be true—with a fraudulent intent—to these defendants, who had no opportunity to test their truth, his statements are as fraudulent and as actionable as though he knew they were not true. The plaintiff’s counsel says that, no doubt, Mr. Johnson “puffed up” the lands, or engaged in some puffing, to these defendants. Under the circumstances of this case, Johnson should have indulged in no puffing. If a jnan has a horse before Mm, or a farm in sight, which he is trying to sell, and the purchaser being present, and having an opportunity to judge of the exact value of any exaggerated statement he may make, he may be pardoned, perhaps, in the course of trade, and in the anxiety to make a good bargain, to do a little puffing; but when he goes to a distant state, and seeks a people who are entirely unacquainted with the property he seeks to sell, and who have to rely, and do rely, upon his word, he should indulge in no puffing, no exaggeration, but simply tell the unvarnished truth in all particulars. Frauds of this character are entirely too common. They seem to increase with the growth of great cities, and in the hot strife of booming localities, and they deserve condemnation whenever a clear case is established.

Finally, the plaintiff contends that, assuming the defendants’ contention to be true, they have ratified the contract after knowledge of the fraud. The evidence leads to a different conclusion. The defendants reap no benefit whatever from the contract, but expended over $17,000 in the first six payments specified therein. While there was some correspondence and acts of these defendants looking to a desire to sell the property before they had full knowledge of the fraud perpetrated upon them, and while they were in doubt as to it, they did not sell, and they took decided action as soon as the truth was learned, and repudiated the contract, and refused to perform it further. “Where a vendee has been induced to purchase property by means of fraud on the part of the vendor, mere want of diligence in discovering the fraud does not deprive the vendee of his right to rescind because thereof. He owes the fraudulent vendor no duty of active vigilance, and, if he acts promptly after actual discovery of the fraud, he has a perfect right to rescind.” Baker v. Lever, 67 N. Y. 304, 309, 310, and cases there cited. The. contract should be annulled and set aside for fraud, and the defendants should recover of the plaintiff the amounts paid by them upon the contract, being $17,660.40, and the interest on the several payments that made up that sum, from the time of such payments, respectively; and defendants should also recover costs of this action.