I dissent upon the ground that the verdict of the jury has established the representation, falsity, scienter, deception and injury, and the evidence in the case was sufficient to justify the submission of these facts to the jury. I think that the conduct of the defendant in opening and answering the letter written by the plaintiff .to J. J. Hathaway was equivalent to an affirmation that he was the owner of the bond and mortgage. It was a false representation of a fact, made with knowledge of its falsity, with intention that it should be acted tipon. It is equally apparent that his silence was *749capable of being turned into a statement that immediate payment was not required, and that he would extend the time for the. payment of the interest as requested by the plaintiff. He knew that his silence would convey to her mind that impression.
It is true that he was not obliged to make any representation ; but having given the plaintiff to understand that he was the owner, he was bound by every consideration of fairness and honesty, as well as by law, to answer the plaintiff’s letters and tell the truth. The suppression of a fact is often 'equivalent to the utterance of a falsehood, and not infrequently more mischievous in its consequences. I am also of the opinion that there was sufficient evidence to go to the jury upon the question whether the plaintiff relied upon the representations to her damage. The testimony of J. J. Hathaway was that he would have been pleased to accommodate the plaintiff if she had requested him to, and he had known what .the situation was. “The fact of my not having heard from her and knowing the interest was. overdue and unpaid was-what caused me to put it in Mr. Hayward’s hands for foreclosure. * * * I should have let it run into the fall anyway and may be-a year.” I think this evidence .shows- that the foreclosure of the mortgage was the consequence of the statement and conduct of the defendant. The jury have so found, and I am not dissatisfied with their conclusion. There was no objection to the evidence of damages. Ho exception was taken to the charge, and no request was made to charge as to the true rule or measure of damages.
The plaintiff offered the best and only proof which could be made to sustain her action, and it is well settled that where a wrong has been perpetrated the law permits the best evidence to be given to establish the injury that the nature of the case permits.
I think the judgment should be affirmed, with costs.
-Chester, J., concurred.
Judgment and order reversed and new trial granted, with costs to appellant to abide event.