In an,action for deceit-the plaintiff seeks to recover damages for. false representations which he alleges were made to him by the defendant, and by means of which he was induced to enter into a Contract, subsequently performed, for the ¡purchase of certain real estate in the city of Hew York. The ¡contract was in.writing. The alleged false representations constitute the inducement for plaintiff entering into the contract.
It is not claimed that an action for fraud will not lie, or that all anterior, negotiations were merged in the! contract. The right to maintain such an action is fully recognized by the authorities. (Thomas v. Beebe, 25 N. Y. 246; Johnson v. Miln, 14 Wend. 195.) It is insisted, however, by the defendant that the complaint is defective in that it does not state facts sufficient to constitute a cause of action for deceit. The question arises upon demurrer to the complaint for insufficiency. The court at Special Term overruled the demurrer and the defendant appealed to this court.
.. The precise ground of the demurrer is that there is no allegation *851in the complaint of damage, and the general and undoubted proposition is urged that damage is a necessary element of the action for deceit and must be pleaded. On analyzing this pleading I think there is a sufficient allegation of that character. Briefly, the facts set forth are the following : negotiations were entered into between the parties for the purchase by the plaintiff from the defendant of the real estate referred to ; as part of the negotiations the plaintiff agreed with the defendant that he, the plaintiff, would purchase the premises and pay the defendant the sum of $5,000 in excess of any bid or offer made to the defendant by the Hew York and Hew Jersey Railroad Company for the same premises; subsequently the defendant represented to the plaintiff that the railroad company had made and that there was then in fact pending an actual bona fide legitimate fixed offer or bid to purchase the premises for the said railroad company from the defendant for the sum of $70,000, and that the Hew York and Hew Jersey Railroad Company was ready and willing to purchase said premises at that price; the plaintiff relying solely and wholly upon the representations of the defendant that the railroad company had made such legitimate and fixed offer and was then ready and willing to pay for the same the sum of $70,000, and believing such representations to be true, entered into a formal contract of sale with the defendant to purchase the property at the price of $75,000. It is then alleged that the representation made by the defendant was false ; that the Hew York and Hew Jersey Railroad Company had not offered to purchase the ‘premises for $70,000, but had offered only $55,000'; that the representations were known by the defendant to be false and were made for the purpose of cheating and defrauding the plaintiff and inducing him to enter into the contract to purchase the premises, paying therefor the price fixed by the contract, to wit, $75,000 (being $5,000 in excess of the alleged bid or offer of the said company), instead of $60,000, the sum actually bid or offered by said company, plus $5,000. The allegation is then made that by reason of the ■- premises the plaintiff has been damaged in the sum of $15,0.00 and judgment is demanded for that amount.
The complaint, therefore, contains all the elements necessary to the constitution of an action for deceit, including an allegation of damage. It is evident that the damage claimed by the plaintiff is *852the difference between $55,000 ' and $70,000;' he having, as he alleges, paid the $15,000 by reason of the false representations. The effect 'of the allegations of the complaint is that the basis of the transaction between the parties in respect of purchase price was the amount offered by the railroad company for the premises, and that the agreement in reality was that the premises should be sold by the defendant to the plaintiff for $5,000 in excess of a bid made for it by the railroad company. It cannot be said, therefore, that the complaint is defective in not alleging damage and the extent and character of the damage. The complaint avers a legal wrong and a resulting pecuniary injury, and it is not material that the plaintiff did not demand the precise damages to which he was entitled or that he mistook the rule of damages in his complaint. (Colrick v. Swinburne, 105 N. Y. 503.)
It has been suggested, but not by counsel, that the complaint is insufficient in that it does not state that the defendant agreed that he would sell the premises upon the basis alleged in the complaint and that, therefore, that pleading merely shows that the plaintiff stipulated that he would do a certain thing; but the allegation in the 5th clause of the complaint is that the plaintiff agreed with the defendant, and that is "tantamount to an allegation that there was a mutual agreement. It is obvious from the whole structure of the complaint that it was intended to allege that the defendant was bound by the agreement. That is to be implied from other facts which are stated, and the complaint is not defective in substance for omitting to state a conclusion which may be so implied. (Case v. Carroll, 35 N. Y. 391.) A demurrer admits not only the facts alleged in the complaint but also all facts that can be implied from the other allegations by reasonable and fair intendment. (Marie v. Garrison, 83 N. Y. 14; Sage v. Culver; 147 id. 241; Wallace v. Jones, 182 id. 37.) It sufficiently appears- by necessary inference from this complaint that the defendant agreed to sell the property upon the basis stated in the complaint, viz., $5,000 over and above an amount actually offered by the railroad company.
The judgment overruling the demurrer should be affirmed.
Judgment affirmed, with costs,. with .leave to defendant to withdraw demurrer and to answer on payment of costs.