Apellants’ counsel is mistaken in supposing a tender back of a conveyance of the lands received, or mortgage and bond delivered to plaintiff, as a necessary condition precedent to a recovery for damages sustained by the fraudulent representations made by Elias W. Beach, Culver v. Avery (7 Wend., 380) and cases cited by him from Cobb v. Hatfield (46 N. Y., 533), and Guckenheimer v. Angevine (81 id., 395), were unlike this one. They were cases where an attempt was made to rescind the contract for fraud.
This is an action for fraud and deceit, and the fraudulent representations form the gravaman of the action. (7 Wend., 380, supra; Clark v. Baird, 9 N. Y., 183.)
Evidence was given tending to establish that Elias W. Beach fraudulently made false representations as to the lands in the negotiation for the sale, and that the purchaser, relying thereon, agreed to pay $2,400 for the premises, and the extent of the damages suffered by the plaintiff by reason thereof. Thus a cause of action was made out against him.
In.the agreement to convey he is described as a principal, and the only vendor of the lands. It was competent as against him to show by the opinions of witnesses the value of the piece represented to be sold, which was not in fact included in the conveyance to the plaintiff. The value of the lands so included, per acre, appeared in the case, and by means of such proof the extent of the damages sustained by the -plaintiff was ascertainable. Such opinions were held competent in Clark v. Baird {supra).
The $2,400 to be paid by the plaintiff was named in the contract *296between the parties, and its manner of payment was, viz., “ $500 to be paid by bond and mortgage given by the plaintiff on such land; another $500 was paid by the transfer of the Huber bond and mortgage, and the remainder of $1,400 by the conveyance of the Folsom street house and lot,” as specified in the contraet.
The offer to show the value of the Folsom house and lot was rejected, and the defendants excepted. There was no counterclaim for fraud in respect to it, and it was, therefore, immaterial what its value was. The defendants had agreed to accept it for $1,400, and by the agreement wrere concluded as to its price and value.
The general exception to the charge of the court was so broad that it presents no question for review here. (Newell v. Doty, 33 N. Y., 83 ; Wheeler v. Billings, 38 id., 263 ; Ayrault v. The Pacific Bank, 47 id., 570.)
The verdict and judgment should be sustained as against Elias W. Beach.
But as to the female defendant, another question is presented by this case. She did not join in the contract for the sale of the lands to the plaintiff.
The case states, viz., “ no proof was given upon said trial that the defendant Susannah Beach ever authorized the defendant Elias W. Beach to make any of the representations respecting the lands conveyed by her to the plaintiff, or that she had any knowledge that such representations had been made either before or after the execution of said contract or deed.”
At the close of the evidence the court was asked to direct a verdict in her favor and declined, and an exception was taken by her to such refusal.
No submission was made to the jury as to whether Elias W. was agent for his mother, the female defendant. Nor does the evidence disclose that she ever authorized him to act in the premises as her agent in the sale of the lands.
In Bennett v. Judson (21 N. Y., 238), it appeared that the vendor had an agent who had committed a fraud unauthorized and unknown to him, but that the vendor had participated in the fruits of the fraud of his agent, and he was therefore liable.
In Baker v. Union Mutual Life Insurance Company (43 N. Y., *297288), there was an appropriation of the funds arising out of the wrongful act of the agent, and the principal was therefore held liable.
No agency to sell the lands as the property of the mother was revealed by the evidence in the case before us.
But it is apparent from the evidence that the female defendant accepted part of the fruits of the fraud practiced by her son, assuming to act as her agent, and we think she thereby ratified his assumption of agency, and is therefore liable for the fraud practiced by him.
The judgment should be affirmed.
Judgment affirmed.
Smith, P. J., concurred; Haight, J., not sitting.