
    August Weidner, Resp’t, v. Timothy G. Phillips, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 4, 1889.)
    
    Fraud—Sale op property—Evidence op real value op property— When admissible
    The action was brought to recover damages for fraud in the sale or exchange of a lot of marble. The fraud consisted in false statements as to the cost and value of the marble. The plaintiff was the owner of a certain hotel, and he sold this property to the defendant The foundation of plaintiff’s claim was that the price of the hotel was fixed in the agreement of sale at the sum of $5,100, and that this sum was to be paid by defendant by the assumption of a mortgage on the property, of $1,000, payment of $1,100 in cash, and transferring to plaintiff a lot of marble which defendant represented to be of the market value of $3,000. Defendant denied the false statements as to the cost of the marble, and that a fixed price was agreed upon'in exchange for the property, and upon the trial offered evidence tending to prove that the property was not worth $5,100, or anything like this sum. This was excluded. Held, that inasmuch as the fact as to the agreement relating to the terms of sale of the property was in dispute, the real value was an element for the jury to consider in determining which was the correct version, and that the evidence was admissible.
    
      W. S. Thrasher, for app’lt; M. T. Jenkins, for resp’t.
    
      
       Reversing 39 Hun, 1,
    
   Brown, J.

This action was brought to recover damages-for fraud iii the sale or exchange of a lot of marble.

The plaintiff was the owner of real estate at Cherry Creek, in Chautauqua county, upon which he parried on a hotel business.

In the month of July, 1881, he sold this property to the defendant, and he alleged in his complaint and claimed in the trial that in the agreement for the sale, the price of the hotel property was fixed and agreed upon at the sum of $5,100, which sum defendant agreed to pay by assuming a mortgage of $1,000 on the property, and paying to plaintiff $1,100 in cash, and transferring to him a lot of marble, which defendant represented to have cost him, and to be of the market value of, $3,000.

The fraud consisted in the false statements as to the cost and value of the marble, and it was further alleged and claimed that defendant colluded with one Fislu to appraise the marble at a fictitious value, and that Fislu did appraise it at the sum of $3,000.

It appears to have been conceded upon the trial by all the parties that the actual cost and value of the marble did not exceed one thousand dollars.

Defendant denied the false statements as to the cost of the marble, and gave evidence which if it had been credited by the jury would have justified the finding that both he and Fislu told plaintiff that the cost and market value of the marble was between eight hundred and one thousand dollars, and defendant denied, and gave evidence tending to disprove that a fixed price was agreed upon in the exchange for the plaintiff’s property.

Upon the trial, the defendant offered to prove, by a witness Reynolds, that at the time of the sale, the hotel property was not worth fifty-one hundred dollars, or anything like that sum. This evidence, upon plaintiff’s objection, was excluded, and defendant excepted to the ruling of the court.

We think the court erred in excluding this evidence, and for such error the judgment must be reversed.

No objection was made to the form of the offer to make the proof. The objection was to the testimony.

The foundation of the plaintiff’s claim was that the price of the hotel was fixed, in the agreement to exchange, at $5,100, and that the sum was to be paid by defendant by the assumption of the mortgage upon "the property of one thousand dollars, the payment of eleven hundred dollars in money, and the transfer of the marble. .

His testimony as to the transaction, at folios sixty-five and sixty-six of the case, is as follows: “He” (defendant) says, “bow much do you ask for the property?” I told Him “I had made up my mind that this property was worth $5,100.” He said “all right.” I said to him, “ and you say you have got $3,000 worth of marble.” He says, “yes; that is what I have got.” I said to him, “ and I don’t want your marble, and allow you any more than the marble cost you at the quarry, and what it cost you to bring it here.” He said “yes; that is all I calculate to get for it.” I said to him, “then if you have got $3,000 worth of marble, I shall want $2,100 to boot, but if you have not got that amount, I shall want more, for I don’t want to let my property go less than $5,100. I would not take any less if you paid me the money.” He said “ all right.”

Again, at folio seventy-four, he testified •“ Phillips said, ‘I think you have got that property of yours a little too high; you ought to call it just an even $5,000.’ I told him I would not do that; that if he did not want to allow me what we agreed on at my house, I would go home and we would say no more about it. He said a hundred dollars hadn’t ought to split us. I told him it would split us, unless he traded as we talked it over at my house. He said, ‘Let’s split the difference and call it $5,050.’ I told him there was no use of talking, that I would not trade any different than what was talked of at my house. He said, ‘All right, if you don’t want to trade any other way I will call it a bargain.’ ”

This conversation was denied by defendant, and he denied that any sum was fixed as agreed upon as the selling price or consideration for the hotel property.

Upon the issue thus presented to the jury, we think evidence as to the value of the hotel property was admissible. The parties might, of course, in their agreement, fix upon any sum as the value of the property, but when the fact as to the agreement was in dispute, the real value was an element for the jury to consider, in, determining which version of the story was the correct one.

The price of $5,100 fitted exactly the transaction, as told by the plaintiff. The assumption of the mortgage on the land, the payment of $1,100 dollars, in cash, and the transfer of the marble at a valuation of $3,000, made up the exact consideration, and plaintiff’s evidence thus appeared nsistent with the facts of the transaction.

“ it it had been proven that the real value of the hotel, >.ad of being $5,100, had been only $3,000, it would .3 tended to corroborate the defendant’s version of' the t ^action, and give color to his statement that the marble, instead of being put into the trade at $3,000, was taken at its actual cost of about $1,000.

Otherwise the plaintiff would have appeared to be receiving in the trade $2,000 in excess of the value of his property, and if the jury had believed that fact, it would have destroyed all inference of false and fraudulent statements which plaintiff’s evidence tended to establish against the defendant, and which the jury appeared to have believed.

We think this evidence was admissible and that its value was for the consideration of the jury, and we cannot say that had it been admitted it might not have led to a different result.

Its rejection was fatal to the judgment which must be reversed, and a new trial granted, with costs to abide the event.

All concur, except Bradley and Haight, JJ., not. sitting.  