¶1The case of Benton v. Pratt, 2 Wend. 385, is decisive of this case, if it has not been overruled. In that case it was held that where a contract would have been fulfilled but for the false and fraudulent representation of a third person, an action will lie against such third person, although the contract was void by the statute of frauds.
¶2In Dung v. Parker, 52 N. Y. 494, it was held that the defendant who had falsely represented that he had authority to lease a store to plaintiff for two years, in consequence of which plaintiff was put to expense in procuring fixtures to fit it up, was not liable for the damages resulting from such misrepresentation, the contract of leasing being void by the statute of frauds.
¶3I am unable to discover any difference in principle between the cases first and last cited. In both the party sued was acting as agent for others. In both he was guilty of false representation, by means whereof the plaintiffs were injured, and in both the contracts were void by the statute of frauds.
¶4If the defendant was not liable in the one case, he ought not to be held liable in the other.
¶5*16The broad ground is taken by the court of appeals, that whenever a plaintiff is bound to prove a contract to entitle him to recover, and that contract is void by the statute of frauds, neither the parties to it nor any third person can maintain the action. Unless there was a contract between Rice and Stebbins for the sale and purchase of the cheese, Rice could not be damnified by the fraudulent representations of the defendant.
¶6The learned judge who wrote the opinion in Dung v. Parkerdoes not allude to the case of Benton v. Pratt, supra,nor to any of the cases that follow it, or that lay down the same proposition, notwithstanding the cases were cited by the respondent’s counsel.
¶7Again, plaintiff ought not to have been allowed to prove the price of butter in New York, and make that price and the cost of transportation the measure of damages. If property contracted to be sold has a market price at the place where it is or is to be delivered, that price must control unless the parties contemplated a different market, and resort can only be had to the price at other places where there is none at the place of delivery. Durst v. Burton, 47 N. Y. 167.
¶8The referee has estimated the damages upon the value of cheese in New York. This was erroneous and the judgment for that reason should be reversed.
¶9Judgment reversed and new trial ordered.