Brounfield v. Denton

The opinion of the court was delivered by Garrison, J. Tire trial court correctly ruled that there was no proof of Mortimer’s agency, and from this it followed, of necessity, that tire declarations made by him were inadmissible against the defendant. Notably, the acts and declarations of Mortimer were inadmissible to prove his own agency. Gifford v. Landrine, 10 Stew. Eq. 127; affirmed, Id. 628; Pederson v. Kiensel, 42 Vroom 525; 1 Ell. Evid., § 252. Mortimer’s agency not having been shown, his declarations could not be proved against the defendant, and with these declarations stricken out there was admittedly no case for the plaintiff. The right of a purchaser upon rescinding a contract of sale into which he has been led by fraudulent misrepresentations of another than the vendor to recover from the innocent vendor' the purchase price received by him, which is the ground relied upon by the plaintiff in error, is necessarily conditioned, as a practical rule, upon the fact that such misrepresentations were [239] made by an agent of the defendant, else they could not be shown in such suit against him. In all of the cases cited by the plaintiff in error the relation of agency existed. Kennedy v. McKay, 14 Vroom 288; Titus & Scudder v. C. & F. R. R. Co., 17 Id. 393; White v. New York, Susquehanna and Western Railroad Co., 39 Id. 123. A vendee who by the fraudulent representations of another has been induced to make a purchase cannot, upon a tender of rescission, recover the purchase price of the innocent vendor when such fraudulent representations are inadmissible in evidence because not made by the vendor or his agent. The error complained of in the present case is, at bottom, one touching the admissibility of testimony concerning which we think the trial court committed no error. The judgment of the Supreme Court is affirmed. For affirmance — The Chancellor, Dixon, Garrison, Fort, Garretson, Swayze, Vredenburgi-i. 7. For reversal — Pitney, Bogert, Vroom, Green, Gray. 5.