
    Emil Forster et al., Respondents, v. John Wilshusen, Appellant.
    New York Common Pleas
    General Term,
    December, 1895.)
    Actual fraud is»no.t necessary to support an action for rescission of a contract; innocent misrepresentation is sufficient.
    A false statement of a material fact, with the intent ánd effect of deceiving, is actual fraud.
    The misrepresentation of an agent to-sell is the misrepresentation of the seller, and where the seller receives and retains a benefit from- the sale, his innocence of the fraud is ineffectual to exonérate him from liability for the fraud. '
    Appeal from judgment in equity.
    » Action to rescind á contract of purchase - of real property for fraudulent misrepresentation of the ’amount of. rentals, and to. recover payments under the contract.
    
      George F, langbein, for appellant-.
    
      Fckoard F. Massey, for respondents.
   Pbyór, J.

Upon evidence clearly sufficient to sustain his conclusions, the learned trial judge .found that-,.by his agent, the defendant, with-intent to deceive the plaintiff, made representations as to the rentals of the property; 'that those representations were untrue and material in ¡ inducing the plaintiff to purchase, and that with due diligence after discovery of the fraud plaintiff demanded a rescission of the contract and the return of .the money paid upon it. These \f acts,, by all authorities, suffice to .support -the action, and we should not be justified, on a mere conflict of evidence, in reversing the judgment. Baird v. Mayor, 96 N. Y. 567; Westerlo v. De Witt, 36 id. 340; Krumm v. Beach, 96 id. 399 ; Hammond v. Pennock, 61 id. 145 ; Vail v. Reynolds, 118 id. 297; Griffing v. Diller, 21 N. Y. Supp. 407; Fairchild v. McMahon, 139 N. Y. 290.

It is-objected that the plaintiff "had- an adequate remedy at-law, but the defense was not pleaded (Town of Mentz v. Cook, 108 N. Y. 504), and to cancel the contract the interposition of equity was requisite. Gould v. Cayuga, etc., Bank, 86 N. Y. 75 ; Bosley v. N. M. Co., 123 id. 550.

It is also urged that the plaintiff made no effort to ascertain from tenants the actual rent, to which the answer is, that the •defendant diverted her from such inquiry; that she had a right to rely on the mere statement of the broker (Mead v. Bunn, 32 N. Y. 275; Schwenk v. Naylor, 1 Silv. Ct. App. 133), and that want of diligence in discovering the fraud is not. sufficient to deprive a party of his right to rescind a fraudulent contract. Baker v. Lever, 67 N. Y. 304, 309. FTor, were the point before us, would an attempt by plaintiff to resell the property defeat her claim to a rescission. Kountze v. Helmuth, 140 N. Y. 432,

It is said' again that an actual fraud on the part of the broker was not shown. The trial judge finds that he made- the misrepresentation with intent to deceive, and surely this is the legal equivalent of actual fraud. Kley v. Healy, 127' H. Y. •555, 561. Moreover, a mistake or innocent misrepresentation ” was enough for rescission of the contract. Koimtze v. Kennedy, 147 FT. Y. 124, 129; Crowe v. Lew-in, 95 id. 423.

The objection that the defendant is not responsible for the misstatement of the broker is obviously untenable. Defend•ant’s ageht in the sale of the property, his misrepresentation was the defendant’s misrepresentation. Fairchild v. McMahon, 139 N. Y. 290, 295.

A further contention is that plaintiff did not rely solely on the broker’s statement, but also upon the defendant’s misrepresentation. If this be the fact, of what avail to the defendant ? Eeliance upon his own statement as well as his broker’s •only aggravates the deception practiced on plaintiff. It was .sufficient, however, that the misrepresentation of the broker was one, though not the sole, inducing cause. Kley v. Healy, 127 N. Y. 561.

Adverting to the alleged errors in evidence, to which due ■objection and exception were taken, we find none; at all •events^ none of prejudice to the defendant. The supposed " errors specially indicated are either untenable or innocuous. Plaintiff’s reliance on the misrepresentation was of the essence of the action, and she was peculiarly competent to prove it. New York, etc., Co. v. Chapman, 118 N. Y. 288; King v. Fitch, 1 Keyes, 432, 449. Proof that plaintiff was instructed by her attorney to ascertain the amount of rent was probably immaterial, but it was- certainly harmless. Proof that the defendant néver employed the broker to sell the property was - rightly rejected, because contrary to an admission in the answer. Proof that the defendant never authorized his broker to make the misrepresentation was irrelevant, because, nevertheless, the defendant was responsible for the misrepresentation. Krumm v. Beach, 96 N. Y. 398,404,405. Defendant insists that-the number of children borne by a witness, was a circumstance affecting her credibility; but we own an inability to apprehend the alleged relation between the two facts.

The cause was well tried and correctly determined.

Judgment affirmed, with costs.

Daly, Oh. J., and Bookstavee, J., concur.

Judgment affirmed, with costs.  