course should be allowed to recover and it seems that one who relies without investigation of his own on the representations of the person at whose request he signs, is guilty of negligence." Signatures to written contracts of other kinds obtained by fraud of this sort are equally invalid." And where the instrument is non-negotiable the signer's negligence will not make him liable to a purchaser; for even though it were granted that the agreement is voidable, not void, the purchaser would be subject to the defence of fraud on the part of his assignor. With these cases where the mistake of the signer of the document was induced by fraud must be contrasted cases where his own negligent failure to read the document or to have it read to him was the sole cause of his mistake, no misrepresentation of the other party, whether innocent or fraudulent contributing thereto. In such a case the signer is liable.1o Error produced by deception in regard to the person of the other contracting party," and conceivably also of the existence of the subject-matter of the contract, may make a transaction void, but such instances are less common Rep. 974. Cf. Bedell v. Herring, 77 Cal. 572, 20 Pac. 129; Bank v. Johns, 22 W. Va. 520; Dowagiac Mfg. Co. v. Schroeder, 108 Wis. 109, 84 N. W. 14. Fraud is not a necessary element of the defence, though it almost invariably exists. Mistake without negligence is enough. Bank of Ireland v. M'Manamy, [1916] 2 Ir. R. 161. Leach v. Nichols, 55 Ill. 273; Nebecker v. Cutsinger, 48 Ind. 436; Ruddell v. Dillman, 73 Ind. 518, 38 Am. Rep. 152; Baldwin v. Barrows, 86 Ind. 351; Yeagley v. Webb, 86 Ind. 424; Douglas v. Mattin, 29 Ia. 498, 4 Am. Rep. 238; Fayette Co. Savings Bank v. Steffes, 54 Ia. 214, 6 N. W. 267; Ort v. Fowler, 31 Kans. 478, 2 Pac. 580, 47 Am. Rep. 501; Abbott v. Rose, 62 Me. 194, 16 Am. Rep. 427; Breckenridge v. Lewis, 84 Me. 349, 24 Atl. 864; Mackey v. Peterson, 29 Minn. 298, 13 N. W. 132; Shirts v. Overjohn, 60 Mo. 305; Dinsmore v. Stimbert, 12 Neb. 433, 11 N. W. 872; Bank v. Smith, 55 N. H. 593; Chapman v. Rose, 56 N. Y. 137, 15 Am. Rep. 401; DeCamp v. Hamma, 29 Ohio St. 467, 471; Ross v. Doland, 29 Ohio St. 473. "Thoroughgood's Case, 2 Coke, 9b; Carlisle Banking Co. v. Bragg, [1911] 1 K. B. 489 (guarantee); Indiana &c. R. Co. v. Fowler, 201 Ill. 152, 66 N. E. 394, 94 Am. St. Rep. 158 (release); Eldorado Jewelry Co. v. Darnell, 135 Ia. 555, 113 N. W. 344 (order for goods); Bank of Ireland v. McManamy, [1916] Ir. Rep. K. B. 161 (guarantee). See also Babcock v. Farwell, 245 Ill. 14, 40, 91 N. E. 683, 137 Am. St. Rep. 284. 8 Carlisle Banking Co. v. Bragg, [1911] 1 K. B. 489. See supra, § 432. § 1489. Distinction between fraudulent acquisition of possession and of title where property is obtained by fraud. It is important to observe whether the fraudulent person induces the defrauded person to assent to a transfer of title or merely to assent to a transfer of possession. In the latter case the fraudulent person can transfer no better title even to a bona fide purchaser for value without notice than any possessor of goods without title.12 § 1490. Materiality of representation. It is laid down in the cases that a misrepresentation must be material in order that the law may take notice of it as a fraud. 13 12 The distinction was brought out in Levy v. Cooke, 143 Pa. St. 607, 614, where Sterett, C. J., said: "If the owner intended to transfer the property in the goods, as well as their possession, the transaction is a sale, and the property passes, however fraudulent the device may have been; but if he intended to part with nothing more than the bare possession, there is no sale and no property passes. In the former case the contract is not void ab initio, but voidable at the election of the vendor. Such' voidable contracts may be affirmed and enforced, or they may be rescinded by the vendor at his election; but in the meantime, and until he does elect, if his vendee transfers the goods, in whole or in part, to an innocent third person for a valuable consideration, the right of the original vendor will be subordinate to that of such innocent third person." This language was quoted with approval in Canadian Bank v. Baum, 187 Pa. St. 48, 52, 40 Atl. 975. See also Baehr v. Clark, 83 Iowa, 313, 49 N. W. 840, 13 L. R. A. 717; National Bank of Commerce v. Chicago, B. & N. Ry. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566; Heilbronn v. McAleenan, 1 N. Y. S. 875; Rohrbough v. Leopold, 68 Tex. 254, 4 S. W. 460; McDonald v. Humphries (Tex. Civ. App.), 146 S. W. 712. 13 Smith v. Chadwick, 20 Ch. D. 27; McGar v. Williams, 26 Ala. 469, 62 Am. Dec. 739; Colton v. Stanford, 82 Cal. 351, 23 Pac. 16, 16 Am. St. Rep. 137; Sprague v. Taylor, 58 Conn. 542, 20 Atl. 612; Williams v. McFadden, 23 Fla. 143, 1 So. 618, 11 Am. St. Rep. 345; Ruff v. Jarrett, 94 Ill. 475; Fuchs & Lang Mfg. Co. v. Kittredge, 242 III. 88, 89 N. E. 723; Clem v. Newcastle, etc., R. R. Co., 9 Ind. 488, 68 Am. Dec. 653; Wright v. Shelby R. R. Co., 16 B. Mon. 4, 63 Am. Dec. 522; Long v. Woodman, 58 Me. 49; Braley v. Powers, 92 Me. 203, 42 Atl. 362; Cook v. Gill, 83 Md. 177, 34 Atl. 248; Hedden v. Griffin, 136 Mass. 229, 49 Am. Rep. 25; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404; Hall v. Johnson, 41 Mich. 286, 2 N. W. 55; Kley v. Healy, 127 N. Y. 555, 28 N. E. 593; Handy v. Waldron, 19 R. I. 618, 35 Atl. 884; Stone v. Robie, 66 Vt. 245, 29 Atl. 257. It was held in Penn Ins. Co. v. Crane, 134 Mass. 56, that it was a question of law for the court whether a misrepresentation was material. But the contrary decisions of Sharp v. Ponce, If, however, a party to a bargain has made misrepresentations for the purpose of inducing action by the other, and the other party has acted, relying upon the misrepresentations, it seems that the former should not be allowed to deny that misrepresentations which have effectively served a fraudulent purpose were material.14 This in effect is saying that any misrepresentations which were intended to bring about a particular result and which do bring about that result are sufficiently material. It is probable that in cases where the question of materiality has been regarded as vital the question whether the misrepresentation was an essential inducement to enter into the transaction has also generally been in the mind of the court. § 1491. Matters of opinion. 15 Two questions arise in regard to fraudulent statements of opinion. The first question involves the dividing line between statements of fact and opinion. The second question concerns the liability of one who fraudulently expresses what is confessedly an opinion in order to induce action by the other party. Closely analogous questions arise in the law of warranty concerning the liability of a seller who makes statements in regard to goods which may be regarded as matters of opinion. The dividing line separating statements of fact from statements of opinion is confessedly hard to draw. In a doubtful case the determination of it is one of fact for the jury.16 The question to be determined is whether the speaker must properly have been understood as asserting absolutely the truth of his statements, or only a belief that the facts corresponded with his statements. In determining this question, not simply the form of speech used but also the subject-matter of the remark must be considered. Any statement may be put in the form of an expression of opinion by the use of such words as "I think," or, "I believe." But even when statements positive in form are made, the hearer may often know perfectly well that the expression is necessarily 74 Me. 470, and Davis v. Davis, 97 Mich. 419, 56 N. W. 774, seem better. 14 Smith v. Kay, 7 H. L. C. 750; Wagner v. National Life Ins. Co., 90 Fed. 395, 33 C. C. A. 121; Brown v. Search, 131 Wis. 109, 111 N. W. 210. 15 See supra, § 971. 16 Dawson v. Graham, 48 Iowa, 378; Kimball v. Bangs, 144 Mass. 321, 11 N. E. 113. one of opinion. Statements that things are "good," or "valuable," or "large," or "strong," necessarily involve to some extent an exercise of individual judgment, and even though made absolutely, the hearer must know, can only be based on the speaker's opinion. It is plain, however, that though the boundaries of quality asserted by such statements are indeterminate often so indeterminate as necessarily to preclude relief-they cannot be stretched indefinitely. A false statement that "the mill is doing well" when the mill was hopelessly insolvent, was rightly held an actionable fraud. 18 17 § 1492. Illustrations in contracts for the sale of goods. In contracts for the sale of goods the question whether a statement is one of fact or opinion will arise in regard to statements of the quantity, quality, or value of the goods; or statements in regard to the pecuniary responsibility of the buyer. Illustrations of such cases are given in the note below. 19 All 17 Such a statement as that a piece of goods is the "Best piece of cloth in the market," is not a warranty. Strauss v. Salzer, 58 N. Y. Misc. 573, 109 N. Y. S. 734. 18 Henry v. Dennis, 93 Me. 106, 44 Atl. 369. See also Sherman v. Smith (Ia.), 169 N. W. 216. 19 QUANTITY.-Cole v. Smith, 26 Colo. 506, 58 Pac. 1086 (the seller agreed to sell a herd of cattle running on the range which, as the buyer knew, had not been, rounded up for a long time, and a number of which were confessedly unknown. It was held that an action of deceit would not lie for a misrepresentation of the number); Brockhaus v. Schilling, 52 Mo. App. 73 (on the sale of a quantity of liquor open to inspection it was held that an inaccurate statement that it would last a certain length of time could not form the basis of a claim for fraud). QUALITY.-A statement by a seller that a patent is valid, or that a machine is effective, are statements of opinion. Chalmers v. Harding, 17 L. T. (N. S.) 571; Reeves v. Corning, 51 Fed. 74; Huber v. Guggenheim, 89 Fed. 598; Tabor v. Peters, 74 Ala. 90, 49 Am. Rep. 804; Hunter v. McLaughlin, 43 Ind. 38; Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep. 198; Bigler v. Flickinger, 55 Pa. St. 279. Cf. Smith & Nixon Co. v. Morgan, 152 Ky. 430, 153 S. W. 749. See also Fuchs & Lang Mfg. Co. v. Kittredge, 242 Ill. 88, 89 N. E. 723. Many illustrations in regard to expression of opinion in regard to quality of goods are collected under the head of warranty. Williston, Sales, § 203. See also Vulcan Metals Co. v. Simmons Mfg. Co., 248 Fed. 853, 161 C. C. A. 7, cert. denied 247 U. S. 507, 62 L. Ed. 1241, 38 S. Ct. 427; Gleason v. McPherson, 175 Cal. 594, 166 Pac. 332. VALUE.-Gordon v. Butler, 105 U. S. 553, 26 L. Ed. 1166; Reid v. Shaffer, 249 Fed. 553, 161 C. C. A. 479; Tillis v. Smith Sons Lumber Co., 188 Ala. 122, 65 So. 1015; Wegerer v. Jordan, 10 Cal. App. 362, 101 Pac. 1066; Schramm v. O'Connor, 98 Ill. 539; Evans v. Gerry, 174 Ill. 595, 51 N. E. 615; Cronk v. Cole, 10 Ind. 485; Kennedy v. Richardson, 70 Ind. 524; these matters, however, may sometimes be the subject of statements of fact as distinguished from opinion. It is obvious that the quantity of goods may usually be exactly determined and a false statement to the effect that it has been determined to be a certain amount is fraudulent.20 So statements of the quality of goods may often relate to characteristics subject to exact determination.21 So any false statements in regard to the basis of value, as the cost or price paid by a third person, 22 or the Boltz v. O'Conner, 45 Ind. App. 178, 90 N. E. 496; Burns v. Mahannah, 39 Kans. 87, 17 Pac. 319; Davis v. Reynolds, 107 Me. 61, 77 Atl. 409; Reynolds v. Evans, 123 Md. 365, 91 Atl. 564; Poland v. Brownell, 131 Mass. 138, 41 Am. Rep. 215; Deming v. Darling, 148 Mass. 504, 20 N. E. 107, 2 L. R. A. 743; Lynch v. Murphy, 171 Mass. 307, 50 N. E. 623; Johnson v. Seymour, 79 Mich. 156, 44 N. W. 244; Face v. Hall, 177 Mich. 495, 143 N. W. 622; Boasberg v. Walker, 111 Minn. 445, 127 N. W. 467; Vath v. Wiechmann, 138 Minn. 87, 163 N. W. 1028; Moody v. Baxter, 167 Mo. App. 521, 152 S. W. 117; Realty Inv. Co. v. Shafer, 91 Neb. 798, 137 N. W. 873; Page v. Parker, 43 N. H. 363, 80 Am. Dec. 172; Uhler v. Semple, 20 N. J. Eq. 288; Chrysler v. Canaday, 90 N. Y. 272, 43 Am. Rep. 166; Van Slochem v. Villard, 207 N. Y. 587, 101 N. E. 467; Romaine v. Excelsior Carbide &c. Co., 54 Wash. 41, 103 Pac. 32; Billups v. MontenegroRheims Music Co., 69 W. Va. 15, 70 S. E. 779. PECUNIARY RESPONSIBIL ITY.-Haycraft v. Creesy, 2 East, 92; Gainsford v. Blackford, 7 Price, 544; People's Savings Bank v. James, 178 Mass. 322, 59 N. E. 807; Lyons v. Briggs, 14 R. I. 222, 51 Am. Rep. 372; Jude v. Woodburn, 27 Vt. 415. 20 Lewis v. Jewell, 151 Mass. 345, 24 N. E. 52, 21 Am. St. Rep. 454 (where a knowingly false statement of the number of yards of carpet on the floors of a house was held ground for an action of deceit. Nor was it ma terial that the buyer might have measured the carpets had be chosen to do so); Birdsey v. Butterfield, 34 Wis. 52 (in this case the sellers of cattle asserted that they would weigh on the average over 900 pounds. In fact the average weight was about 835 pounds. It was held that the buyer might recoup damages for the deceit in an action on a note given for the price). See also Worcester v. Cook, 220 Mass. 539, 108 N. E. 511 (land). 21 Jackson v. Collins, 39 Mich. 557. See also s. c., Collins v. Jackson, 54 Mich. 186, 19 N. W. 947. The defendant sold a stock of goods representing them as new, well-selected, and salable, and that old goods in the stock had been removed. It was also represented that the stock contained over $8,000 worth of new goods and that they had been bought at the lowest market price. It was held these representations furnished ground for an action of deceit. So in Stewart v. Stearns, 63 N. H. 99, 56 Am. Rep. 496, representations that goods were "clean and desirable" and that they were of "good styles and salable" were held to render the seller liable. The numerous decisions under the law of warranty may also be referred to. 22 Gluckstein v. Barnes, [1900] A. C. 240, 247; Zang v. Adams, 23 Colo. 408, 48 Pac. 509, 58 Am. St. Rep. 249; Green v. Bryant, 2 Ga. 66; Douglass v. Treat, 246 Ill. 593, 92 N. E. 976; |