Weidner v. Phillips

• Decision Date: 04 June 1889
• Parties: WEIDNER v. PHILLIPS.
• Court: New York Court of Appeals Court of Appeals

114 N.Y. 458

21 N.E. 1011

WEIDNER

v.PHILLIPS.¹

Court of Appeals of New York, Second Division.

June 4, 1889.

Appeal from supreme court, general term, Fifth department.

W. S. Thrasher, for appellant.

M. T. Jenkins, for respondent.

BROWN, J.

This action was brought to recover damages for fraud in the sale or exchange of a lot of marble. The plaintiff was the owner of real estate at Cherry Creek, in Chautauqua county, upon which he carried on a hotel business. In the month of July, 1881, he sold this property to the defendant, and he alleged in his complaint and claimed on the trial that in the agreement for the sale the price of the hotel property was fixed and agreed upon at the sum of $5,100, which sum defendant agreed to pay by assuming a mortgage of $1,000 on the property, and paying to plaintiff $1,100 in cash, and transferring to him a lot of marble, which defendant represented to have cost him and to be of the market value of $3,000. The fraud consisted in the false statements as to the cost and value of the marble, and it was further alleged and claimed that defendant colluded with one Fisher to appraise the marble at a fictitious value, and that Fisher did appraise it at the sum of $3,000. It appears to have been conceded upon the trial by all the parties that the actual cost and value of the marble did not exceed $1,000. Defendant denied the false statements as to the cost of the marble, and gave evidence which, if it had been credited by the jury, would have justified the finding that both he and Fisher told plaintiff that the cost and market value of the marble was between $800 and $1,000, and defendant denied, and gave evidence tending to disprove, that a fixed price was agreed upon in the exchange for the plaintiff's property. Upon the trial the defendant offered to prove by a witness, Reynolds, that at the time of the sale the hotel property was not worth $5,100, or anything like that sum. This evidence, upon plaintiff's objection, was excluded, and defendant excepted to the ruling of the court. We think the court erred in excluding this evidence, and for such error the judgment must be reversed. No objection was made to the form of the offer to make the proof. The objection was to the testimony. The foundation of the plaintiff's claim was that the price of the hotel was fixed in the agreement to exchange at $5,100, and that the sum was to be paid by defendant by the assumption of the mortgage upon the property of $1,000, the payment of $1,100 in money, and the transfer of the marble. His testimonyas to the transaction, at folios 65 and 66 of the case, is as follows: ‘He [defendant] says: ‘How much do you ask for the property?’ I told him ‘I had made up my mind that this property was worth $5,100.’ He said: ‘All right.’ I said to him: ‘And you say you have got $3,000 worth of marble?’ He says: ‘Yes; that is what I have got.’ I said to him: ‘And I don't want your marble, and allow you any more than the marble cost you at the quarry, and what ti cost you to bring it here.’ He said: ‘Yes; that is all I calculate to get for it.’ I...