Powell v. Flechter — 45 N.Y. St. Rep. 294

Majority

p. 294

Minnie Paul Powell, Resp’t, v. Victor S. Flechter, Appl’t.

(New York Common Pleas, General Term,

Filed April 4, 1892.)

Headnote

1. Fraud—Action' fob—Representations as to value by vendor.

In an action for deceit, it appeared that the defendant was a dealer in musical instruments, and made a specialty of “rare old violins;” that plaintiff had no special knowledge of musical instruments; that defendant sold her a violin falsely and knowingly representing that it was made by a famous maker and worth at least $1,000. Held, that such representations constituted actionable fraud.

3. Same—Measure of damages—Error in charge—When not ground-fob reversal.

In such case the court charged the measure of damages to be the difference between the price paid and the actual value of the violin; whereas the true rule of damages, in actions for deceit, is the difference between the real and the represented value; but the error was in favor of the defendant. Held, on appeal from judgment for plaintiff, that as the error was not prejudicial to appellant, it presents no ground for reversal.

Action for deceit; and appeal from judgment and order denying motion for a new trial.

The facts sufficiently appear in the opinion.

Stimson & Williams (Á. P. Johnson, of counsel), for resp’t Benno Loewy, for app’lt.

After all the elaborate discussion expended on this appeal, the questions involved are extremely simple and of easy solution.

The complaint alleges that, on the sale of a violin to the plaintiff, the defendant represented to her that it “ was made by one Gaspard di Duiffoprugcar and was worth the sum of at least a thousand dollars ; ” that the representation was false to the knowledge of the defendant, and was made with the intent of deceiving the plaintiff; that it did deceive her, to her damage. In support of the cause of action so stated the plaintiff produced sufficient proof; and, upon conflicting evidence, the jury gave her a verdict

In response to appellant’s contention that the verdict is against the weight of evidence, it suffices to say that, at all events, no such preponderance in his favor appears as authorizes the court to interfere with the decision of the jury. It is impossible to infer that here has been a miscarriage of justice.

But, the judgment is impeached for error of law. In the first place, appellant insists that actionable fraud is not predicable merely of an opinion as to value. This, undoubtedly, is the rule in its absolute expression; subject, however, to modification by qualifying circumstances. If a vendor, himself acquainted with the value of a commodity, and conscious that the vendee reposes confidence in his opinion as that of an expert, and aware that the vendee is incompetent to estimate the value of the article, willfully exaggerates the value with the intent and effect of defrauding the vendee, to his damage; if upon this predicament of fact an action for deceit may not be maintained, then is our law of a lower morality and less perfect efficiency than we had fondly imagined it to be.

p. 295

But, happily, the law of New York, at least, is obnoxious to no such reproach. Chrysler v. Canaday, 90 N. Y., 272 , 279. An intentionally false statement as to value is actionable “ where one in purchasing goods, the value of which can only be known to experts, relies upon the vendor, who is a dealer in such goods, to give him accurate information concerning them.” Cooley on Torts, 484. And although an expression of opinion as to value be not actionable, it is otherwise of representations as to the facts on which the valuation is based. Schwenk v. Naylor, 102 N. Y., 683 ; 2 St. Rep., 477 ; Miller v. Barber, 66 N. Y., 558 , 567; Ellis v. Andrews, 56 id., 83, 86; Hickey v. Morrell, 102 id., 454; 2 St. Rep., 408 ; Manning v. Albee, 11 Allen (Mass.), 520; State v. Hefner, 84 N. C., 751 ; State v. Tomlin, 29 N. J., 13 ; Bradley v. Luce, 99 Ill, 234 ; McAleer v. Horsey, 35 Md., 439 .

Here the facts of the case bring it clearly and exactly within the operation of the rule as thus qualified. The plaintiff-vendee was a woman utterly ignorant of violins and their value; the defendant-vendor was to her knowledge a. dealer and expert in violins, and so familiar with their value; he assured her that the violin for which she was negotiating was worth a thousand dollars; he represented that it was the make of Graspard di Duiffoprugcar, celebrated in the sixteenth century for his skill in the construction of such instrument, and that violins of his make were very rare; these assurances and representations were false and fraudulent; she bought in reliance upon them, and in consequence sustained the damage for which she recovered. It is impossible to doubt that the plaintiff completely established a cause of action.

But it is said the plaintiff attached no importance to the representation that the violin was the make of that particular artist, and such seems to be the fact. Nevertheless, she purchased in reliance on the representation as to the value of the instrument; and it is enough that the actionable statement was one, though not the sole, inducement to her contract. Kley v. Healy, 127 N. Y., 555 ; 40 St. Rep., 215 ; Hubbard v. Briggs, 31 N. Y., 518 .

Again, appellant alleges error of law in the measure of damage propounded to the jury. The court charged the measure of damages to be the difference between the price paid and the actual value of the violin, whereas the true rule of damages in actions for deceit is the difference between the real - and the represented value. But, obviously, the error was in favor of the defendant; for the represented value may have been greater than the price paid. . Still, the defendant argues that the error was material and hurtful, because no evidence was given of the represented value, i. e., what the violin would have been worth if the make of the particular artist; and that being the case, no damage beyond nominal was shown. To this contention a two-fold answer is apparent; first, that the represented value was a thousand dollars; and secondly, on the hypothesis that no proof was adduced of the value of a Duiffoprugcar violin, that the defendant affirmed it to be worth a thousand dollars ; and again, that the price paid ($500) was evidence of its value if it were the violin represented.

p. 296

Miller v. Barber, 66 N. Y., 559 , 568; Hoffman v. Conner, 76 id., 121, 124.

„The error not being of prejudice to the appellant presents no ground for reversal.

Finally, the appellant urges that the case was submitted to the jury so as to authorize a recovery for other frauds than those alleged; but the record contradicts the contention, and exhibits that the court, in response to a request from counsel, distinctly instructed the jury that the plaintiff could only claim for the representations laid in the complaint.

We have examined in detail the almost countless exceptions in the case; but we observe none affecting the validity of the judgment.

Judgment and order affirmed, with costs.

Bischoff and Giegerich, JJ., concur.