
    (21 Misc. Rep. 429.)
    THOMPSON v. HOWD.
    (Oneida County Court.
    October, 1897.)
    1. Sales—-Action for Breach of Warranty—Sufficiency of Evidence.
    A purchaser of a house to be removed from the lot paid a person to examine the title. Held, in an action by the purchaser against the seller to recover the purchase money and damages, on the ground that defendant represented the property to be free from incumbrance, when there was a mortgage on it, plaintiff was not entitled to recover the money paid for the examination, in the absence of any evidence as to the value of the services rendered.
    2. Same—Action to Recover Price Paid—Sufficiency of Evidence.
    In an action by the purchaser of a house to be removed from the lot on which it stood, against the seller, to recover purchase money paid and damages, on the ground that defendant represented that the premises were not incumbered, it appeared that defendant made such representation, and that the record showed there was a mortgage on the property. One of the owners of the mortgage testified that it was not paid in full, and that it was a lien on the property, “subject to the right of defendant to sell this house in question.” Held, that a judgment for plaintiff was not sustained by the evidence.
    Appeal from justice court.
    Action by Louisa Thompson against Julia Howd, in justice’s court, to recover the purchase money paid for a house sold by defendant to plaintiff, to be removed from the lot on which it stood, and damages. Plaintiff agreed to pay $25 for the house, and paid $12 on account at the time of the purchase. She afterwards procured a person to examine the title, and agreed to pay him $8 therefor. She claimed that defendant represented that there was no mortgage or incumbrance on the house, and that, on examination of the title, it was found to be incumbered by a mortgage. From a judgment in favor of plaintiff for the $12 paid on account and the $8 which plaintiff had agreed to pay for examination of title, defendant appeals. Reversed.
    Charles R. Coville, for appellant.
    George F. Morss, for respondent.
   DUNMORE, J.

No evidence whatever was given as to the value of the services of Mr. Morss in examining the title. Very likely they were worth the amount charged, but the fact was not proven. Plaintiff testified that she had agreed to pay $8, but that did not establish their value. Even upon plaintiff’s theory, defendant was liable only for the value of those services, and the burden to prove their value was upon the plaintiff. Supposing plaintiff had agreed to pay $100, would defendant be liable to pay that sum, in the absence of any proof that the services were xvorth that amount? The justice erred in including that item in the amount of damages allowed. This error would not necessarily require a reversal of the judgment, but would require a modification of it. But there is another question which, I think, must dispose of the entire case. Plaintiff sought to rescind the contract, and recover back the amount of money paid and any damages she had sustained, on the ground that, by reason of alleged fraudulent statements of defendant in representing that the property was free from incumbrances, the contract was voidable. Plaintiff was sworn as a witness, and gave her version of the conversation at the time the house was purchased, and the $12 paid on account, as follows:

“I asked her if she had the right to sell the house. She said it was hers individually. I asked her if there was any claims,—any mortgages. She said, ‘No.’ ’’

Plaintiff’s husband testified that he was present, and gave his version, as follows:

“My wife asked her who the house belonged to. She said it belonged to her individually. My wife asked her if there were any claims on the property. She said there were not.”

The only evidence tending to show that the above statements were not true was given by Johnson, one of the alleged mortgagees. His evidence upon that question, so far as shown by the return, is as follows:

“Q. Were the firm of Davies & Johnson the owners of a mortgage given by the defendant to them prior to October 10, 1896, and which covers the house in question was situated? (Objected to, etc.) A. Yes; the mortgage has not been paid in full. Q. Was this mortgage a lien upon this property in October, 1896, and continues to be a lien upon this same property down to the present time? (Objected to, etc.) A. Subject to the right of Mrs. Howd to sell this house in question.’.’

This was all the evidence before the justice to sustain a finding that defendant’s representations were untrue. The burden of proof was upon plaintiff, not only to show that the representation was made, but also to show that it was false. Johnson testified that the lien of the mortgage was subject to the right of defendant to sell the house. If that was so, and there was no evidence to the contrary, defendant very likely understood and believed that the house in question was not incumbered, and that was substantially the truth. There was therefore no misrepresentation as to any material fact. I am of the opinion that plaintiff failed to prove that defendant’s representation was untrue, and consequently was not entitled to recover. The judgment must therefore be reversed, with costs.

Judgment reversed, with costs.  