Sec. 255. Promises. Hopes, Etc. (P.298)

A statement that an arartmcnt house can be altered so that a larger income can be obtained from it is a mere expression of opinion, and not a tact which will serve as the foundation of a defense by a vendee to an action for the specific performance of a contract to purchase that it was induced by the false and fraudulent misrepresentation of a material fact.1

Where, in a suit to cancel contracts for the purchase of real estate and to recover the amount paid thereunder, upon the ground that the defendant's agent falsely and fraudulently represented that he would, after one year, sell the property for the plaintiff at a profit of at least ten per cent, and there is no evidence that plaintiff was induced to sign the contract by reason thereof, the complaint should be dismissed. An agreement to sell property in the future as an inducement for one to purchase, does not constitute a fraud in the execution of the contract, in case of a failure to sell in the future. It is merely a breach of contract, and the remedy in an action for damages.2

In one case,3 it was said: "The present value of property depends upon what it will bring in the market, and whatever influences surround it, conditions adhere to it, or prospects attend it, that form a well-grounded belief in the minds of the public as to its value, impart a value to it. So that when a man who is familiar with real estate, as Johnson was, and engaged in the business of selling it, and assuming to have peculiar knowledge in relation to it, represents to persons, living at a great distance, who have no opportunity to examine the property or ascertain the conditions that surround it, that its value is a certain amount, it ceases to be speculative and becomes an affirmation of fact. That is, a fact based upon his knowledge and experience and judgment, all of which he is supposed to marshal together as a basis of his statement as to the value. . . . . If a man has a horse before him or a farm in sight which he is trying to sell, the purchaser being present and having an opportunity to judge of the exact value of any exaggerated statement he may make, he may be pardoned perhaps in the course of the trade and in the anxiety to make a good bargain for doing a little 'puffing'; but when he goes to a distant State and seeks persons who are entirely unacquainted with the property he seeks to sell, and who have to rely, and do rely, upon his word, he should indulge in no 'puffing,' no exaggeration, but simply tell the unvarnished truth in all particulars. Frauds of this character are entirely too common; they seem to increase with the growth of great cities and in the hot strife of booming localities, and they deserve condemnation whenever a clear case is established."

1 Phyfe w. Cobem. 74 Misc. 299, 131 N. Y. Suppl 620 (1911); affd.. 153 App. Div 399; 138 N. Y. Suppl 1137.

'2 Gotteberg W. Park Terrace Co, 168 App. Div. 986; 154 N. Y. SuppL 387 (MS).

3 White v. London 90 Hun 218 70 N. Y. St Rep 913; 3ft N. Y. Suppl 1135; affg. jdgment. 8 Misc. 106; 99 N. Y. St Rep. 509; 28 N. Y SuppL 619 (1894).

In another case,4 it was said: "It seems to be long-settled law in this State that false representations by a vendor as to value are not in themselves sufficient to support an action by the vendee for fraud.5 This rule is qualified to the extent that if the vendor resorted to a trick or artifice to prevent independent inquiry by the vendee, he will be held liable for fraudulent representations as to value.6 Again, if. with the representations as to value, the vendor make a false statement as to any extrinsic fact, which representation is false, and made with intent to deceive, then the vendee who relies upon it may have his action for fraud. ....

"In the case at bar the vendee was solicited to visit the land; he did so; no artifice was practiced upon him to prevent inquiry; he did not form a favorable judgment of the offer to sell; he did not see profit in it for him as a speculation. The moving consideration of his purchase, according to his story, was the assurance of Narber that the property could be sold in the next spring at a profit But this is not a statement of an existing fact, such as to take the case out of the general rule. Nor was the alleged statement of Narber that he could sell the property for the vendee before the mortgage came due, at a profit, a statement of an existing fact reversing 85 Misc. 321; 147 N. Y.Suppl 503.

4 Meritas Realty Co. v Farter, 166 App. Div. 420; 151 N. Y. SuppL MS (1915);

5 Ellis v. Andrew, 56 N. Y. 83; Van Slackest v. Villard. 207 N. Y. 5S7.

6 Simar v. Canaday, 53 N.Y .298.

Statements of this nature as to future events are deemed to be but speculatively promissory and do not constitute actionable deceit."