
    Stevens v. Huber.
    (City Court of Brooklyn
    General Term,
    May, 1893.)
    Where the rescission of a contract of purchase of a saloon, store, fixtures, furniture and good will of the business is asked for because of the seller’s false representations as to the cost of the property, the exclusion of evidence offered by defendants to show the value of the good will is error for which a judgment for plaintiff will be reversed.
    Action to rescind a contract of sale on the ground of fraud,
    
      Charles E. Burke, for plaintiffs (respondents).
    
      Straley, Hasbrouck da Schloeder, for defendant Huber (appellant).
    
      Hirsh ds liasgum, for defendant Gebhard (appellant).
   Yan Wyck, J.

This action was brought to rescind an executed contract of purchase by plaintiffs from the defendants of a certain saloon, store, fixtures, furniture and the good will of the husmes's for $6,000, of which $2,500 was paid in cash and $3,500 in a chattel mortgage on the property. The plaintiffs had judgment, and therefrom this appeal is taken. Such rescission is claimed on the ground that plaintiffs were induced to “ their great damage and injury ” to make the purchase, by the false and fraudulent representation of the defendants that the saloon, store, fixtures and repairs had cost them $11,000, and the court found that this portion of the property only cost them $6,800. Was it necessary to sustain this action that plaintiffs should have been damaged; in other words, that they were induced by false and fraudulent representations to purchase property not fully worth $6,000, the sum they paid for it ? li The party must suffer some pecuniary loss or injury as the natural consequence of the conduct induced by the misrepresentation. * * * Fraud without resulting pecuniary damage is not a ground for the exercise of remedial jurisdiction, equitable or legal; courts of justice do not act as mere tribunals of conscience to enforce duties which are purely moral.” Pom. Eq. Juris. (2d ed.) § 898. This seems to be a correct statement of the rule in such cases. We have been unable to find and our attention has not been called to any authority in this state which is in conflict therewith. This being so, then the value of the property sold was material and the court erred in excluding the offer of evidence to show the value of the good will of the business, and the exception of the defendants thereto was well taken. This renders the consideration of the other questions or exceptions unnecessary, unless the judgment can be sustained solely on the ground that the defendants agreed to take the property back and refund the purchase price within a year if the plaintiffs were not satisfied. We do not think an action to rescind such a contract of purchase founded upon fraudulent representations can be converted into an action to enforce a contract to buy back at the same price within a certain time. This objection was raised and overruled, to which the defendants duly excepted.

Judgment must be reversed and new trial ordered, with costs to appellants to abide the event.

Clement, Ch. J., concurs.

Judgment reversed, new trial ordered. 
      
       One of defendants was asked the following : “ Q. On the 13th day of August, 1891, what in your opinion was the value of the good will of the Elk saloon ?” [Objected to as immaterial and incompetent. Objection sustained. Both defendants except.]
     