Funk & Wagnalls Co. v. Roemer — 137 N.Y.S. 863

Majority

p. 863

FUNK & WAGNALLS CO. v. ROEMER.

(Supreme Court, Appellate Term, First Department.

November 8, 1912.)

Headnote

Sales (§ 38*)—Fraudulent Representations—Cancellation of Sale—Expression of Opinion.

Though a book salesman induced a purchase of books by telling a wife that her husband would not be angry wJLth her for making the purchase, it was not a representation of fact, and cannot be considered to have been false, but was rather a mere expression of opinion as to a future state of mind of the husband, and its making would not authorize a cancellation of the order as induced by fraud.

[Ed. Note.—For other cases, see Sales, Cent. Dig. §§ 65-77, 85; Dec. Dig. § 38.*]

♦For other cases see same topic & § number in Dec. & Am; Digs. 1907 to date, & Rep’r Indexes

Appeal from Municipal Court, Borough of Manhattan, Ninth District.

Action by the Funk & Wagnalls Company against Augusta Roemer. From a judgment for defendant, plaintiff appeals. Reversed, and new trial ordered.

Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.

Loeb, Bernstein & Ash, of New York City (Milton B. Loeb and Max Ash, both of New York City, of counsel), for appellant.

Ely Rosenberg, of New York City, for respondent.

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.