Opinion
July 6, 1909.
J.W. Shea, for the appellants.
Stewart F. Hancock and J. Charles Meldram, for the respondent.
Upon the trial Mr. Heid testified on behalf of the defendant that he was willing to have the barn moved onto the premises conveyed to the plaintiffs, and the defendant offered to move it at her expense. Thereupon the court dismissed the complaint, without costs, inserting in the judgment a provision requiring the defendant within a stipulated time to move the barn two and one-half feet to the north so that it would stand wholly on the premises actually conveyed.
We think, in view of the undisputed evidence in the record, that the disposition made of the case is not just to the plaintiffs.
There was no intentional misrepresentation as to the lot line made by the defendant. She did not intend to deceive. She did, however, make a misstatement to the plaintiffs as to a material fact by which they were misled and induced to purchase the land. It is not necessary to prove the fraud alleged. The action was in equity and the court will not permit the plaintiffs to lose or the defendant to profit by her misstatement, although unintentionally made. ( Silverman v. Minsky, 109 App. Div. 1; affd., 186 N.Y. 576; Crowe v. Lewin, 95 id. 423; 24 Am. Eng. Ency. of Law [2d ed.], 618.)
The parties never agreed, the one to purchase or the other to sell, the lands covered by the conveyance. Their minds did not meet. There could be no reformation, for the defendant did not own that part of the land included in the conveyance and which did not pass to the grantees. The action for rescission was, however, an available remedy. ( Vail v. Reynolds, 118 N.Y. 297, 302; Davis v. Rosenzweig Realty Co., 192 id. 128, 133 et seq.)
The learned trial court was of the opinion that the representations were not shown to be material. The plaintiffs did not receive the quantum of land which they bargained for. The width of a part of their lot was diminished two and one-half feet, and we think the evidence fairly established this paring off one side of the lot deprived them of a portion of the fern bed and the pear tree. They testified they would not have purchased for the price paid if they had expected the lines were not as shown them by the defendant, and that they relied upon her statements. They were not required to show the depreciation in value occurring by reason of the lessened quantity of land conveyed to them. The appellant, Mr. Tryon, did testify, based upon all the alleged misrepresentations, that the value of the land actually conveyed to the plaintiffs was not more than $1,500. The property was obviously not worth as much as the lot they contracted for. They purchased for a home. They were deceived. As soon as they learned of that fact they informed the defendant and sought to annul the transaction in order that both parties might be restored to their original status. They acted promptly. The defendant should have acceded to this demand. She admitted her misstatement, and yet insisted on reaping the full benefit of her contract precisely the same as if she had made no misrepresentations. The plaintiffs are not seeking damages by this action. They desire to have the contract rescinded, and they are entitled to the relief asked for.
We have not based our decision on the representations as to the location of the south line of Fourth street as the evidence was not so explicit on that question and the court has found with the defendant upon it.
The judgment should be reversed and a new trial ordered.
All concurred.
Judgment reversed and new trial ordered, with costs to appellants to abide event upon questions of law and fact.