
    ELIZABETH A. FURMAN, Plaintiff and Respondent, v. GEORGE G. TITUS, Defendant and Appellant.
    fraudulent representations.
    To maintain an action for fraud and deceit, based upon fraudulent representations, the representations must not only be false, but the party making them must believe, or have reason to believe, them false; and such representations must influence the other party to the contract.
    A representation of the value of property, although untrue, will not authorize a recovery, where the vendee has an opportunity to examine the property and judge of its value. Such a representation is the expression of "an opinion, the. correctness of which the vendee is supposed to be as competent to judge of as the party making the same, and an action for a deceit in mistating the value can not be maintained (Ellis v. Andrews, 56 N. 7. 83).
    Before Monell, Ch. J., and Curtis, J.
    Appeal from a judgment.
    
      Decided January 3, 1876.
    The action was to recover damages for a false representation.
    The defendant contracted to sell to the plaintiff a certain lease of premises in this city, and as it was alleged in the complaint, with intent to deceive and defraud the plaintiff, fraudulently and falsely representing to her: 1 st. That the said lease was a valuable one. 2nd. That it was worth eight thousand dollars bonus. 3rd. That the fixtures, repairs, &c., placed by him therein were worth four thousand dollars to the lessee. 4th. That there were no expenses whatever to be made or paid by the lessee, except the rent and cleaning, and that there were no deductions from the rent agreed to be paid by each tenant. 5th. That the sub-tenants were prompt to pay, and responsible. 6th. The rent agreed to be paid by the tenant in several instances. 7th. That the premises were in perfect repair. 8th. That the profit thereon to the lessee had been, and would continue to be, from nine hundred to one thousand dollars per year. 9th„ That he owed nothing on said lease.
    That relying upon such representations, and believing them to be true, the plaintiff conveyed certain other property to the defendant as a consideration for said lease, and received an assignment thereof.
    That the representations were and each of them was false and was so known to be by the defendant.
    The action was tried by a jury.
    The court, in submitting the case, charged the jury as follows: After disposing of the first and second representation, with saying that th,ey did not constitute a fraud, unless made under circumstances which were calculated to mislead the party, he said : “3rd. That the fixtures placed there by him were worth four thousand dollars to the lessee. ISTow, as to that, he had no business, if that is found not to be true, to make that statement, if he put those fixtures there, and they did not cost that much, and very much less. Defendant’s statement here was, he paid two thousand five hundred dollars for the cost. He represented the value at four thousand dollars, and if he knew the cost, and represented the value to be nearly one-half more, that is false. The next representation is, that there were no expenses whatever to be met or paid by the lessee except the rent and cleaning, and that there were no deductions from the rents agreed to be paid by each tenant. I have to say to you, if that is not so, it is a false representation. These tenants were there, they were paying money, and if he chose to make a representation, he is bound by what he says; if it turned out that these tenants were not paying the amounts named, why, being false, it is a fraudulent representation. That the sub-tenants were prompt to pay, and responsible. As to that, of itself, it is not a fraud. A man may make one statement in regard to that, and another may make another. How responsible, or how prompt, is a question for business men to determine. The sixth representation is, that the rent paid by the tenants accrued instanter—that is accrued whenever the time expired that it should be paid. That the premises were in perfect repair. Now, as to the repair of these premises, if this plaintiff went there and looked at these premises herself (and it is very evident she did, because she admits that she did), it can not be said to be a fraud, because every man is bound to use his eyes, and exercise his judgment, and to judge of such matters himself. That is, always on the supposition, however, that there is nothing done to mislead him. That the profits to the lessee had been, and would continue to be, from nine hundred to one thousand dollars a year. Well, now, as to that, if there were no such profits, then when he made that statement it was a false representation. Ninth, that he owed nothing on said lease. That is not involved in the action.”
    The court then generally charged, that the real point was, whether the defendant had made a false statement in the matter relating to the value of the lease, its terms, and the condition of the building.
    The defendant’s counsel requested the court to charge: That to maintain an action for fraud and deceit based upon fraudulent representations, the representations must not only be false, but the party making them must believe, or have reason to believe, them false, and such representations must influence the other party to the contract. Which was refused, the court saying he had so charged substantially.
    The defendant excepted to the charge, and refused.
    t
    The verdict was general for the plaintiff.
    The defendants appealed.
    
      F. G. Salmon for appellant.
    
      D. C. Calvin for respondent.
   By the Court.—Monell, Ch. J.

I am of the opinion that so much of the charge of the learned judge as held that a representation of the value of the fixtures and repairs placed upon the leasehold premises, would, if found to be untrue, authorize a recovery, was erroneous.

Such a representation is the mere expression of an opinion, the correctness of which the vendee is supposed to be as competent to judge of, as the party making it. When the purchaser has the opportunity, as she had in this case, to personally examine and judge for herself, an action for a deceit in mis-stating the value, can not be maintained (Ellis v. Andrews, 56 N. Y. 83).

There were other parts of the charge which related to representations, which, if untrue, were such as an action could be maintained on them, and they were to some extent separated from those which did not fall within the rule. But the part especially excepted to, was presented to the jury in such a manner, as to leave them at liberty to find their verdict upon it alone. They were told, in effect, that if the defendant untruly represented the value of the fixtures, he had no right to do so; that if he put the fixtures there, and they did not cost that much, and very much less, he had no right to make the statement. He represented the value at four thousand dollars, and if he knew the cost, and represented the value to be nearly one-half more, that is false. “Again,” he said, “a false, deliberate statement of any fact or facts, made with knowledge and intent to deceive, and material to the-snbject, is a false representation.” And he concluded that part of the charge by saying, “ Whenever the defendant has represented anything in relation to the value of this property which was false upon its face, and which he knew to be false, and which the party inquiring of him had not the means of ascertaining, that is clearly a fraudulent representation, and he must be responsible for it.”

There was nothing in the subsequent portions of the charge, which corrected the error in respect to the representation of value, and the jury, if they found that representation untrue, were authorized to give the plaintiff a verdict.

It is not enough that there were other representations sufficient in substance, and sustained as to their falsity by the evidence, and upon which the jury have found favorably to the plaintiff. The verdict is general, and it is not possible to say which of the representations was found by the jury. It is as proper to presume the one as the other, and it may have been the one erroneously given to the jury by the court, as being sufficient in substance to sustain the action,

I am also of the opinion that the request to charge was correct. It contained an important element of a fraudulent representation, namely, that the other party was influenced by it (Taylor v. Guest, 58 N. Y. 262).

The request was refused, not that it was not a correct proposition of law, bnt under the belief that the court had so already charged. But I am unable to find anywhere in the charge the statement that to constitute a representation fraudulent, it must have influenced the party to whom it was made. The charge is wholly silent on that subject, and for that reason the defendant had a right to have the jury instructed in the language of the request.

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

Curtis, J., concurred.  