Van De Sande v. Hall , 13 How. Pr. 458 ( 1856 )

Paige, Justice.

The defence of a false representation by John T. Van De Sande, in respect to the quantity of land contained in the lease, is not sustained by the evidence. The proof does not satisfy me that the representation was wilfully and designedly false; or that it misled the defendant and induced him to enter into the lease. Before accepting the lease the defendant examined the premises, and had an opportunity of ascertaining for himself the quanty of land embraced in the lease. The case comes within the principle of Faure agt. Martin, (3 Seld. 210.) Where a contract for the purchase of land has been consummated, without any fraud as to the real quantity of land sold, courts will not inquire whether there has been an actual mistake as to the supposed quantity. (3 Paige, 94.)

But it is insisted by the counsel of the defendant, that the recoupment to which it is claimed he is entitled on account of the fraudulent representation, set up in the answer, is a counter-claim, and not being denied in a reply is admitted. I do not think that the claim of the defendant to such recoupment is a counter-claim within the meaning of the 150th section of the Code. A counter-claim is defined in the Code to be one existing in favor of a defendant and against the plaintiff, between whom a several judgment may be had in the action. It must be a claim against the plaintiff as a party to the contract or transaction out of which it arises, and on which a separate and distinct action could be maintained against him at the suit of the defendant.

In this case defendant could not maintain an action against the plaintiff upon the fraudulent representation set up in the answer, because that representation was not made by him, but by his assignor.

Judge Bosworth took a similar view of this question in Gleason agt. More, (2 Buer, 639.) The claim of the defendant to a recoupment in this case, however, if properly set up and established by the evidence, would be inadmissible as a partial defence under the 172d section of the Code and the general principles of the common law. (2 Johns. Ch. R. 441; 2 Johns. C. 435; 5 Johns. Ch. R. 419; 1 Paige, 131; 10 id. 369.)

But not being a counter-claim, it is" not admitted by the plaintiff’s omission to reply. But if the defendant’s claim to a recoupment was a counter-claim within the meaning of the Code, it cannot avail him, as his answer does not state facts sufficient to make it a defence either partial or total. His answer omits to allege that the defendant was misled by the representation, or that his belief in the truth of the representation induced him to enter into the lease. The proof of such fact was necessary to establish the defence. If necessary to make out the defence, it was equally necessary that it should be alleged. (1 Story Eq. Jur. §§ 191,192, 195, 197, 202, 203.) The defendant must aver .in his answer every fact necessary to show a defence, partial or total; and every such necessary averment must be proved. (8 How. Prac. Rep. 472; 3 Selden, 478; 1 Comst. 117.) The averment of a fact necessary to be established, cannot be dispensed with because it may be presumed from the existence of other facts. (15 Barb. R. 34, 35.)

Judgment must be entered for the plaintiff for the balance of rent due on the lease.