The opinion of the court was delivered by: KRAFT
Plaintiff brought this action to recover damages claimed to have resulted from defendant's alleged fraud in the sale to plaintiff of certain musical instruments. Defendant filed a counterclaim for a balance due on a contract under which defendant repaired and restored a cello at plaintiff's request.
The case was tried to the Court, pursuant to stipulation. From the evidence submitted, we make the following
1. On September 1, 1944, plaintiff purchased a violin from defendant for $ 12,000, in reliance on defendant's representations that the violin was a genuine Stradivarius.
2. The violin was not a genuine Stradivarius, but was one probably made by Genaro Galliano, which, at the time of the sale to plaintiff, had a fair value of $ 1,100.
3. In connection with his sale of the violin to plaintiff, defendant committed the following acts of concealment and deceit:
(b) Contemporaneously with the sale and delivery of the violin, defendant took from his safe and gave to the plaintiff an old document which he stated was proof of the genuineness of the instrument.
(c) In the latter part of 1946, defendant procured insurance on the violin and delivered to plaintiff the insurance policy insuring one Stradivarius violin of the value of $ 15,000.
(d) In a conversation with plaintiff in late 1944, defendant indicated by his conduct and statements that the violin was a genuine Stradivarius.
(e) In another conversation with plaintiff late in 1957 or early in 1958, defendant insisted that the violin was a Stradivarius and was worth $ 35,000 or $ 40,000.
4. Some time in the summer of 1946, plaintiff purchased a cello from defendant for $ 5,000, in reliance on defendant's representations that the cello was a genuine Bergonzi.
5. The cello was not a genuine Bergonzi, but was a cello of English make, probably the work of John Betts, which, at the time of the sale to plaintiff, had a fair value of $ 300 to $ 400 if repaired, at a repair cost of $ 100.
6. In connection with his sale of the cello to plaintiff, defendant made the following statements in an effort at concealment:
(a) In a conversation with plaintiff in 1954, defendant repeated his representation that the cello was genuine Bergonzi.
(b) On an occasion in 1957, at his place of business, defendant, referring to plaintiff's cello, stated to a Mr. Harper, 'This is the ...