(dissenting). I dissent -with respect to the dismissal of the counterclaim and vote to affirm the judgment thereon. Because the plaintiff itself lost through its own fraud is no ground for denying the defendant recovery for its loss because of such fraud. The defendant parted with its money upon the faith of plaintiff’s promise to carry out its oral agreement. The defendant was not obligated to pay this sum as it had not assumed the mortgage, but had taken the property subject thereto. Its evidence shows that it would have suffered a loss of the property and retained the sum paid out had it not relied upon plaintiff’s agreement. To this extent the plaintiff was unjustly enriched.
Judgment modified by reversing so much thereof as grants defendant judgment upon its counterclaim against the plaintiff, and by dismissing the said counterclaim, and as so modified affirmed, without costs.