The defense alleged and sought to he proved was one of fraudulent representations inducing the execution of the lease. The representations relied upon were, firstly, that the lessor was paying $2,400 per annum as the rent of the premises, and, secondly, that there was no restriction in plaintiff’s lease other than that said premises should not be used as a restaurant or saloon. The trial court held that neither of said representations, if made, was a material statement and struck out the defense. The case of Rosenbaum v. Gunter, 3 E. D. Smith, 203, relied on by the respondent, and on the authority of which the trial court based its ruling, seems to be controlling as to the first alleged misrepresentation. But the representation in respect to restrictions was a representation of a material fact which it is claimed by defendant was an inducing cause of the execution of the lease and of the guaranty. If there were no restrictions in the plaintiff’s lease, the benefit of that state of facts would, of course, accrue to the defendant, and the value of those benefits is claimed as an inducement to the execution of the lease between the parties to this action. We believe that such representation, if false, was material to a defense of. fraud, and evidence thereof should have been admitted.
Judgment reversed and new trial ordered, with costs to appellant to abide the event.
Giegerich, J., concurs in the result.