
    Henry W. Stevens et al., Resp'ts, v. George H. Huber et al. App'lts.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed May 22, 1893.)
    
    1. Sale—Rescission—Fraud—Evidence.
    In an action to rescind an executed contract of purchase of a saloon, store fixtures and good will of the business, on the ground that plaintiffs were induced to purchase by false representations as to the cost to the vendors of the saloon, store fixtures and repairs, it is error to exclude evidence of the value of the good will, as it is necessary, in order to maintain the action, to show that plaintiffs were damaged, and, therefore, the value of all the property sold should he shown.
    8. Same—Agreement to repurchase.
    It is not sufficient to sustain, such action that the vendors agreed to take the property hack and refund the purchase price within a year if the vendees were not satisfied.
    Appeal from judgment in favor of plaintiffs.
    
      Charles E. Burke, for resp'ts; Hirsh & Rasquin, for app'lts.
   Van Wyck, J.

This action was brought to rescind an ex ecu tea contract of purchase by plaintiffs from the defendants of a certain saloon, store fixtures, furniture, and the good will of the business for $6,000, of which $2,500 was paid in cash and $3,500 in a chattel mortgage art the property. The plaintiff 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? “ The party must suffer some pecuniary loss or injury as the natural consequence of the conduct induced by the representation. ,* * * 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 to enforce duties which are purely moral.” Pomeroy’s Eq. Jur. (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, Oh. J., concurs.  