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or so purposely limits investigation as to prevent the discovery of the truth.

$ 936. Representations as to value.- Representations concerning the worth or value of an article, or the amount for which it could or may be sold, are usually nothing more than the mere expression of an opinion respecting a subject upon which either party may easily acquaint himself. It is to be expected ordinarily that the seller of goods will seek to enhance their price by decided if not extravagant declarations concerning their value, and the buyer, it is presumed, will measure these declarations accordingly, even if he does not seek, on bis part, to depreciate the goods by equally positive or extravagant assertions. Where parties thus deal at arm's length and on equal footing, it is well settled that false representations concerning the worth or value of the goods sold will neither sustain an action nor warrant rescission. Where, however, one party has peculiar means of knowledge not open to the other, or where granite, was told by the seller that on these and not to make inquiries they were simply rust stains from of others is held to be fraud. iron bands in which the stone had 2“No action will lie,” said Bronbeen shipped, and would wash off son, J., “ for a false representation by with the first heavy rain. Wegenaar the vendor concerning the value of v. Dechow, 33 N. Y. App. Div. 12. the thing sold; it being deemed the

1 In Beasley v. Huyett & Smith folly of the purchaser to credit the Mfg. Co. (1893), 92 Ga. 273, 18 S. E. R. assertion. And besides, value is mat420, the court said: “There can be ter of judgment and estimation about no doubt that it is a fraud for manu- which men may differ." Van Epps facturers of machinery to fill it with v. Harrison (1843), 5 Hill (N. Y.), 63, latent defects not discoverable in 40 Am.. Dec. 314. To same effect: thirty days, and then sell it as good, Deming v. Darling (1889), 148 Mass. but warranting the same only as 504, 20 N. E. R. 107, 2 L. R. A. 743; against defects actually discovered Poland v. Brownell (1881), 131 Mass. within thirty days, they knowing 138, 41 Am. R. 215; Lynch v. Murphy, that the existing defects are not dis- 171 Mass. 307, 50 N. E. R. 623; Page coverable within that time, and con- v. Parker (1861), 43 N. H. 363, 80 Am. cealing both the defects and their Dec. 172; Chrysler v. Canaday (1882), knowledge of them."

90 N. Y. 272, 43 Am. R. 166; Neidefer So, in Stewart v. Wyoming Ranche v. Chastain (1880), 71 Ind. 363, 36 Am. Co. (1888), 128 U. 8. 383, to make false R. 198; Evans v. Gerry (1898), 174 IIL representations concerning the prop- 595, 51 N. E. R. 615. erty and to induce the buyer to rely Especially is this true where the a special trust or confidence is reposed by one party in the opinion of the other, the rule is different; and it is equally well settled that false representations or false expressions of opinion as to value, intended to deceive, and accomplishing that result, are to be regarded as fraud and entitle the defrauded party to his remedy. article was open to inspection and fraudulent where the boundaries are the buyer was qualified to judge for pointed out and it is open to inspechimself (Griffith v. Strand, 19 Wash. tion. Gordon v. Parmelee (1861), 2 686, 54 Pac. R. 613); and where both Allen (Mass.), 212; Mooney v. Miller parties were equally familiar with (1869), 102 Mass. 217. the facts and the buyer had ample op

Private offers of third persons, even portunity to inform himself. Weaver if bona fide, are not evidence of value. v. Shriver (1894), 79 Md. 530, 30 Atl. Hine v. Manhattan R. Co. (1892', 132 R. 189.

N. Y. 477, 30 N. E. R. 985, 15 L. R. A. A representation by the seller, 591, and cases cited. fraudulently made, that stock is 1 Said Brewer, J. (then of the suworth eighty per cent of its par preme court of Kansas, now of the value, will not sustain an action for United States supreme court), in deceit (Ellis v. Andrews (1874), 56 Graffenstein v. Epstein (1880), 23 N. Y. 83, 15 Am. R. 379, and valuable Kan. 443, 33 Am. R. 171: “Somenote); nor a representation that a times there are such relations bebond sold was an A No. 1 bond and tween the parties, or their situations the security good (Deming v. Dar- are such, that a peculiar obligation ling (1889), 148 Mass. 501, 20 N. E. R. rests on the one who knows to re107, 2 L R. A. 743); nor that a pat- veal his knowledge. There may be ented machine will work “ effect. some trust relation between the two, ually” and “rapidly” (Neidefer v. or a recognized habit of dealing in Chastain, supra); nor the amount of dependence upon the party's statethe crop which given plants or vines ments or representations. In such will yield (Holton v. Noble (1890), 83 cases there is a peculiar duty restCal. 7, 23 Pac. R. 58); nor that a cor. ing upon the party to disclose the porate bond was “just as good as true facts. A confidential adviser, gold, and was just as good as wheat an attorney, a factor, an agent, all in the bin and worth $1,000" (French hold such relations that they are v. Fitch (1887), 67 Mich. 492, 35 N. W. under special duty to tell the truth, R. 258); nor a representation that one the whole truth, and nothing but the * is making a good trade” (Brady v. truth. So where from a long-conCole (1996), 164 Ill. 116, 45 N. E. R. tinued course of dealing the party 438); nor a statement that the buyer making the representations knows will make profit on the article that the other has become accusbought (Terhune v. Coker (1899), 107 tomed to act upon his representa. Ga. 352, 33 S. E. R. 394).

tions, he may not presume upon such Representations concerning the confidence to impose a falsehood. So, value of land will not be deemed also, where there are peculiar means

$ 937.

Market value.- Statements as to market value stand upon the same footing, for this is usually a matter open of knowledge possessed by one and of opinion, and is in the nature of a not open to the other, as where a statement of fact, the rule of careat dealer in precious stones trades with emptor does not necessarily apply. one inexperienced and ignorant of Maxted v. Fowler (1892), 94 Mich. the values of such articles. Acquaint- 106, 53 N. W. R. 921 (citing Picard 5. ance with such values, or the tests McCormick, 11 Mich. 68; Manning of quality, is not acquired at once, V. Albee, 11 Allen, 520; Lawton v. or by the mere asking; it requires Kittredge, 30 N. H. 500; Bradley v. training and time. So if a dealer Poole, 98 Mass. 169, 93 Am. Dec. 144; knows that a party is confined to his Miller v. Barber, 66 N. Y. 558; Gerroom by injury or disease, and com- hard v. Bates, 2 El. & Bl. 476, 20 Eng. pelled to depend on the information L. & Eq. 129). Peck v. Jenison (1891), brought to him — and indeed, gen- 99 Mich. 326, 58 N. W. R. 312, is to erally, where the parties cannot, by the same effect. reasonable care and diligence, place "The expression of an opinion by themselves upon equal terms, the the vendor can never be made aclaw casts a higher obligation to re- tionable, if false, unless it be so veal the truth."

strong, and based upon such superior Representations as to value in con- knowledge, to the extent that it is nection with an extrinsic fact cal- relied upon as true, and reasonably culated to throw the buyer off his so by the vendee, as a fact, and guard will sustain an action. Mil- known to be thus relied upon by the ler v. Barber (1876), 66 N. Y. 558. seller.” Collins v. Jackson (1881), J4 See also Coles v. Kennedy (1890), 81 Mich. 186, 19 N. W. R. 947. Iowa, 360, 25 Am. St. R. 503, 46 N. An intending purchaser of bank W. R. 1038. Representations con- stock is entitled to rely upon the cerning the value of the good-will statement of the president as to the of a business are actionable, as this condition of the bank, without makis a matter peculiarly within the ing further inquiry. Merrill v. Florknowledge of the seller. Byrne v. ida Land Co., 60 Fed. R. 17, 8 C. C. Stewart (1889), 124 Pa. St. 450, 17 Atl. A. 444. So an intending purchaser R. 19.

of a patent, whose value lies largely Where the sale is to an infant, un- in the cost of manufacturing goods familiar with values, the question under it, may rely upon the seller's whether representations of value de- statements as to such cost. Braley ceived him should be left to the jury. v. Powers (1898), 92 Me. 203, 42 Atl. R. Welch v. Olmstead (1892), 90 Mich. 362. 492, 51 N. W. R. 541.

In Picard v. McCormick (1862), 11 Where the seller knows that the Mich. 68, it is said per Campbell, J.: buyer is wholly ignorant of the value “It is undoubtedly true that value of the property, and knows that he is usually a mere matter of opinion; is relying upon the seller's represen- and that a purchaser must expect tation, and such representation does that a vendor will seek to enhance not take the form of a mereexpression his wares, and must disregard his

to inquiry by either party. Representations, however, respecting the cost of an article, or the price at which it was bought

statements of their value. But, while ignorance, and deliberately and dethis is generally the case, yet we are signedly availed himself of it to deaware of no rule which determines fraud him. We think that it cannot arbitrarily that any class of fraudu- be laid down as a matter of law that lent misrepresentations can be ex- value is never a material fact; and empted from the consequences at- we think the circumstances of this tached to others. Where a purchaser, case illustrate the impropriety of without negligence, has been induced any such rule. They show a plain by the arts of a cheating seller to and aggravated case of cheating. rely upon material statements which And it would be a deserved reproach are knowingly false, and is thereby to the law if it exempted any specific damnified, it can make no difference fraud from its remedial action where in what respect he has been deceived, a fact is stated and relied upon, whatif the deceit was material and relied ever may be the general difficulty of on. It is only because statements of defrauding by means of it.” value can rarely be supposed to have 1“ However justly the moralist induced a purchase without negli- may censure the address sometimes gence that the authorities have laid resorted to by men of keen business down the principle that they cannot habits to effect advantageous conusually avoid a bargain. But value tracts, misrepresentations as to the may frequently be made by the par value or quantity of a commodity in ties themselves the principal element market, when correct information in a contract; and there are many on those subjects is equally within cases where articles possess a stand- the power of both contracting parard commercial value, in which it is ties with equal diligence, do not, in a chief criterion of quality among contemplation of law, constitute those who are not experts. It is a fraud.” Foley v. Cowgill (1838), 5 matter of every-day occurrence to Blackf. (Ind.) 18, 32 Am. Dec. 49. find various grades of manufactured Followed as to market value in Cronk articles known more generally by v. Cole, 10 Ind. 485; Graffenstein v. their prices than by any test of their Epstein, 23 Kan. 443, 33 Am. R. 171. quality which can be furnished by Prima facie, a statement to an ordinary inspection. Frauds are experienced dealer in hops as to the easily committed by dishonest deal. market value of the article he is ers, by confounding these grades, asked to buy is dealer's talk on a and cannot be detected in many subject about which the seller has a cases except by persons of experi. right to assume that the buyer will

In the case before us the al- make up his mind for himself, the leged fraud consisted of false state- means of information being equally ments by a jeweler to an unskilled open to both.” Per Holmes, J., in purchaser of the value of articles Lilienthal v. Suffolk Brewing Co. which none but an expert could be (1891), 154 Mass. 185, 28 N. E. R. 151, reasonably supposed to understand. 26 Am. St. R. 234, 12 L. R. A. 821 The dealer knew of the purchaser's (citing Manning v. Albee, 11 Allen,



or sold, stand upon obviously different ground; and though many courts apply to them the rule of immunity extended to declarations of opinion like that of value,' others, with better

520; Poland v. Brownell, 131 Mass. In Holbrook v. Connor, supra, the 138, 41 Am. R. 215; Deming v. Darl- court say: “The statement of the ing, 148 Mass. 504, 20 N. E. R. 107, 2 vendor that he paid a certain price L. R. A. 743, and the other cases cited for his land, if true, can be no more supra in this note). And it was than an indication of his opinion therefore held that, though the seller of its value; and when we consider had fraudulently misstated the mar- the various motives which may, ket price to an experienced dealer and often do, actuate men in makwho said he did not believe it and ing their purchases, and especially took measures to protect himself by when it is done for the purposes of contract, he could not claim to have speculation, it is but the slightest been defrauded.

proof of such an opinion. It is ceri Holbrook v. Connor (1872), 60 Me. tainly of no more value than the 578, 11 Am. R. 212; Hemmer v. offer of a third person, and this is Cooper (1864), 8 Allen (Mass.), 334; considered of so little worth that it Cooper v. Lovering (1870), 106 Mass. is not legal testimony in a case where 77; Gassett v. Glazier, 165 Mass. 473, the market price is in issue. It is, 43 N. E. R. 193; Richardson v. Noble however, claimed that the price paid (1885), 77 Me. 390; Bishop v. Small is a definite fact, the truth or falsity (1874), 63 Me. 12; Long v. Woodman of which is susceptible of satisfactory (1870), 58 Me. 49; Martin v. Jordan proof, while assertions of quality and (1872), 60 Me. 531; Elerick v. Reid value are necessarily matters of opin(1895), 54 Kan. 579, 38 Pac. R. 814; ion which are too uncertain for juSowers v. Parker (1898), 59 Kan. 12, dicial cognizance. This may be true, 51 Pac. R. 888; Mackenzie v. See- and the same may be said of offers berger, 76 Fed. R. 108, 40 U. S. App. made as well as many other repre188, 22 C. C. A. 83.

sentations not actionable. But it “No action lies against a man for should also be remembered that a his declaring that a certain person misrepresentation, to be the foundawould have given him a certain sum tion of an action, must relate not for his farm, though no such offer only to an existing fact, but to a was ever made. It is a mere ground material one,-one which will enable of estimation, with which no prudent the purchaser more intelligently to man should be satisfied.” Roberts form his own opinion of the value of on Fraud, 523, cited with approval in the property. Now, as we have alCross v. Peters, 1 Greenl. (Me.) 376, ready seen, the price paid, if cor10 Am. Dec. 78; Adams' Cas. on rectly stated, is but an uncertain Sales, 211, and Holbrook v: Conner, indication of the vendor's opinion. supra. But see, contra, Ives v. Car. It gives no light whatever as to any ter (1856), 24 Conn. 392; Moline Plow inherent fixed quality or description Co. v. Carson, 72 Fed. R. 387, 36 U. S. which goes to make up the value, App. 448, 18 C. C. A. 606.

and, in this respect, is not distin

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