
    Frank H. Phillips, Appellant, v. Nathaniel Conklin, Respondent.
    (Argued October 6, 1874;
    decided November 10, 1874.)
    Where a party is induced to enter into a contract for the purchase of lands, relying upon material representations on the part of the vendor which prove to be untrue, he is justified in refusing to perform, although the representations were not made with fraudulent intent, but through a mistaken belief as to their correctness. It is not necessary, in such case, for defendant to show he has sustained actual damage.
    The rule in actions to recover damages for fraud and deceit distinguished.
    This was an action to recover $1,000 damages, as stipulated in a contract, for the exchange of lands.
    The defence was, that defendant was induced to enter into the contract through false representations, on the part of plaintiff’s agent, as to the rental of the property. (Reported below, 2 N. Y. S. C. [T. & O.], 619.)
    The referee found, in substance, that plaintiffs agent made a representation as to the actual rental of the property, which was material, and was untrue; that defendant was induced by it to enter into the contract; and that both plaintiff’s agent and defendant were mistaken in the belief of it. Held, that this was sufficient to justify defendant in his' refusal to perform the contract (Doggett v. Emerson, 3 Story, 700); that it was not necessary to show an intentional utterance of a representation known to be untrue, or, in other words, a fraudulent intent; that the rule in actions for damages for fraud and deceit did not apply, as they did not depend upon the applicátion of the equitable doctrine of avoidance of a contract on the ground of mistake.
    Also, held, that it was not necessary that defendant should have sustained actual damage.
    
      R. H. Underhill for the appellant.
    
      Nehemiah Millard for the respondent.
   Folger, J.,

reads for affirmance.

All concur.

Judgment affirmed.  