
    Leonard M. Gage, Appellant, v. Henry Peetsch, Respondent.
    (City Court of New York, General Term,
    March, 1896.)
    . False representations — Incumbrances — Nonsuit,
    In an action for false representations plaintiff’s evidence showed that on a purchase by him of the good will, stock in trade and lease of a saloon- from defendant the latter, in answer to a question, stated that it was subject to a chattel mortgage of $950 and that was all against it, when in fact the mortgage was for $1,440. Held, that a nonsuit was error.
    Appeal from judgment in favor of defendant, entered on dismissal of complaint.
    
      William-F. Handel, for appellant.
    Edward W. S. Johnston,, for respondent.
   O’Dwyer, J.

The appeal is 'from a judgment in favor of the defendant, entered upon the dismissal of the. complaint at the close of the plaintiff’s case, •

The action is brought to recover the sum of $550. paid by the plaintiff to defendant for the good will, stock in trade and lease of a saloon, upon the ground that the defendant falsely represented that the property in question was wholly free from- incumbrances or debt of any nature or character, excepting a certain chattel mortgage for $950, and that that sum was all that was due upon the mortgage; that it was a lien oh the saloon and fixtures only; .that the receipts averaged over $25 daily, and that by accepting certain assignments of a bill of sale and lease plaintiff would be fully entitled to conduct, maintain and carry on-said saloon subject only to said debt of $950 upon the saloon and fixtures.

Thereafter the plaintiff learned that the mortgage covered and was also a lien upon the lease and license, and that the sum -of $1,440.10 was due and a valid lien at the time of the sale under the mortgage, 'and he was compelled to surrender the saloon to the mortgagee.

At the dose of the plaintiff’s testimony on the trial, the court, upon the motion of counsel for the defendant, granted a nonsuit, to which the counsel for the plaintiff excepted..

The motion for nonsuit was granted and made on the following ground:

“ That plaintiff has not proved a cause of action. s« h" hns not proved any false representations, dr any known to be false, and made with the intent to deceive; and that he has not proved any damages or that the representations were false in fact.’’

In reviewing a judgment upon a nonsuit the plaintiff is entitled to the benefit of every fact that the jury could have found from the evidence given, and to every legitimate inference that is warranted by the proofs. - , • ■

. This disposition' of a cause by a trial court is never warranted unless it appears that the plaintiff is not entitled, to recover, after giving him. the benefit of the most favorable view that a jury ■ would be warranted in taking of the evidence

The plaintiff’s- theory with respect to the facts, so far as they were supported by the evidence, must be deemed to be established, and where inferences are to be drawn from facts and circumstances not in themselves certain or incontrovertible, it is generally for the jury and not for the court.

It appears from the evidence that one Connell stated to the plaintiff in the presence of the defendant:

.“ Here is Hr. Peetsch (defendant); l am only his agent, he is my boss,” and also stated, “ The earnings were $25 per day, the rent ¿bout $40 and the mortgage $950.”

That Hr. Sloan, a real estate agent, who had the place from defendant for sale, introduced the plaintiff and brought him to defendant’s place> and he (Sloan), in defendant’s presence, told plaintiff, when he suggested the necessity of having a lawyer to examine the' matter: “It is not necessary, the statement he (defendant) makes he is bound by it.”

And when plaintiff asked as to the defendant’s responsibility, Sloan said: “ Mr. Cage, Mr. Peetsch is engaged in business, in a legitimate business and he cannot afford to do anything that wav.” Whereupon plaintiff said: “ I understand, Mr. Peetsch, when I pay you $550 that I have invested in this place subject to a mortgage of $950,” and the defendant answered: “ That is all,” and plaintiff repeated, “ Subject to a mortgage of $950; is that all against it? ” and defendant again replied, “ That was all.”

Plaintiff thereupon paid the defendant the sum of $550 and received a receipt for the same, together with assignments of the bill of sale and lease, heretofore referred to.

It was subsequently learned that the mortgage was not only for $950, but for all sums due at any time for goods sold and advances made, and that at this time there was a due and valid lien against .the place, including the mortgage, of $1,440.10,-for. which sum and lien the plaintiff was obliged to surrender the saloon under the mortgage.

The evidence clearly shows that the defendant took plaintiff’s money, leading him to believe and to rely upon the representations that but $950 was due, when he.knew the amount was much more.

The defendant knew the mortgage was a valid lien and an incumbrance against the saloon for goods sold in addition, to the $950, and his omission to disclose that fact when asked by plaintiff was wrong and he should not be allowed to retain the benefit so wrongfully procured.

It is not only consonant with reason and justice, but clearly settled in this state, that a vendor possessed of knowledge of latent defects in his property, proposed to. be sold, cannot honestly represent to an intending purchaser that it is free from such defects.

Defendant’s answer to plaintiff’s inquiry was a false' representation. • , .

It. was not necessary for plaintiff to employ a lawyer and examine the- mortgage, on file; he had a right to rely upon defendant’s ■statements and accept them as true.

The essential elements óf the action, representations, falsity, scienter, deception and injury were proven, and it was error to nonsuit the plaintiff.

. The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.

Fitzsimons and Gonlan, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to.abide event. ' ' ■  