Gordon v. Manhattan Desk Co. ( 1910 )

GUY, J.

This is an appeal from a judgment in favor of plaintiff, in an action tried by the court without a jury, to recover back $20 paid by plaintiff on the purchase of a secondhand vertical filing case, which payment and purchase plaintiff alleges was induced by false and fraudulent representations made by defendant’s representative to plaintiff as to the suitability of the filing case for the purpose of filing legal documents.

It appears that plaintiff visited defendant’s place of business on several occasions, and personally inspected the filing case before purchasing. The plaintiff is a practicing lawyer, presumably having knowledge of the size of legal documents and of the space necessary for the filing of same. Plaintiff testified that after the purchase he discovered that the filing spaces in the article purchased were only 9 inches in width, and that the envelopes for filing legal documents were 15 inches in width, and upon discovering such fact he rescinded the sale, offered to return the filing case, and demanded the return to him of the money paid therefor. The defendant admits the sale and receipt of the $20, but denies the making of any false or fraudulent representations. '

The alleged false representations, as testified to by the plaintiff, were to the effect that the article sold was “a legal document file suitable to accommodate filing envelopes containing legal documents placed therein unfolded.” The defendant denies making any such statement; but, if made, such statement would not seem to form a sufficient basis to maintain an action for fraud. It would amount to no more than an expression of opinion. It does not appear that plaintiff was misled by such statement. The entire evidence is inconsistent with the view that the defendant intended to, or did, actually deceive or mislead the plaintiff by false or fraudulent representations of fact.

Judgment should therefore be reversed, and a new trial .ordered, with costs to appellant to abide the event. All concur. •