Van Vliet v. McLean , 30 N.Y. Sup. Ct. 206 ( 1880 )

.Dykman, J.:

This action is for the recovery of the amount paid to the defendant by the plaintiff, on the assignment of a mortgage on real property.

The trial rvas before the judge without a jury, and his finding is that, as a part of the transaction, the defendant stated that the •mortgage was a first mortgage upon property worth $15,000. That it was not a first mortgage, and was worthless. That the defendant refused to guarantee the mortgage. That there was no fraud, and that the defendant believed it was a first mortgage and a good mortgage, and did not intent to guarantee it. That the plaintiff relied upon the statement that it was a first mortgage, and bought thereon. The conclusion of law is, that the statement was a material one, 'and the plaintiff bought by reason of it, and is entitled to judgment.

It is thus seen that the recovery is not permitted on a warranty for there was none. If it can be maintained therefore it must stand on the declaration of the defendant, that the mortgage was a first mortgage. The defendant so stated, and the statement was untrue, but is this sufficient to impose liability upon him. For a representation made without intent to deceive no action can be sustained. Intent to deceive must exist, with falsehood, before any legal liability is imposed. The case of Bennett v. Judson (21 N. Y., 238), was at one time supposed to have established a different rule in this State, and the language of the judge who delivered the opinion tends to such conclusion. That case has, however, been so explained and questioned by the Court of Appeals, that it cannot be permitted such effect. (Craig v. Ward, 3 Keyes, 393; Marsh v. Falker, 40 N. Y., 565 ; Meyer v. Amidon, 45 Id., 170 ; Oberlander v. Spiess, 45 Id., 175; Wakeman v. Dalley, 51 Id., 34.)

These cases all hold substantially, that, before a recovery can be permitted in this class of cases, there must be false representations and an intent to deceive, by stating what is known to be false, or by professing knowledge of the truth of a statement which is untrue. In this case, the representations of the defendant were untrue, and although made in positive terms yet they were made with no intent to deceive. The design to defraud the plaintiff is excluded from the transaction. The defendant believed what he said was true, and the language used was not calculated to produce the belief that he had personal knowledge of what he said. The subject was not one upon which he had personal knowledge, and his declaration imports no more than the expression of his candid belief. There was no positive expression of knowledge, and it was a subject upon which knowledge would naturally be possessed by but few. We think the findings of fact fatal to the conclusion of law. It is found that there was no warranty and no fraud, and that the defendant believed what he said to be true. The judgment, therefore, should have been for the defendant.

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

Gilbert, J., concurred; Barnard, P. J., not sitting.

Judgment reversed and new trial granted, costs to abide event.