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past income from property may amount to fraud. Even statements of value without specification of the basis of the estimate have been in some cases held actionable, especially when made by one supposed to have expert knowledge.24 A

Teachout v. Van Hoesen, 76 Iowa, 113, 40 N. W. 96, 1 L. R. A. 664, 14 Am. St. Rep. 206; Dorr v. Cory, 108 Iowa, 725, 78 N. W. 682; Johnson v. Gavitt, 114 Iowa, 183, 86 N. W. 256; Potter v. Potter, 65 Ill. App. 74; Caswell v. Hunton, 87 Me. 277, 32 Atl. 899; Braley v. Powers, 92 Me. 203, 42 Atl. 362; Pendergast v. Reed, 29 Md. 398, 96 Am. Dec. 539; McAleer v. Horsey, 35 Md. 439; Kilgore v. Bruce, 166 Mass. 136, 138, 44 N. E. 108; Stony Creek Co. v. Smalley, 111 Mich. 321, 69 N. W. 722; Pratt v. Allegan Circuit Judge, 177 Mich. 558, 143 N. W. 890; Van Epps v. Harrison, 5 Hill, 63, 40 Am. Dec. 314; Sandford v. Handy, 23 Wend. 260; Fairchild v. McMahon, 139 N. Y. 290, 34 N. E. 779, 36 Am. St. Rep. 701; Townsend v. Felthousen, 156 N. Y. 618, 51 N. E. 279; Van Slochem v. Villard, 207 N. Y. 587, 101 N. E. 467; Nanes v. Peck & Mack Co., 181 N. Y. App. D. 760, 169 N. Y. S. 224; National Bank of Anadarko v. Oldham, 26 Okl. 139, 109 Pac. 75. See also Coolidge v. Rhodes, 199 Ill. 24, 64 N. E. 1074; Conlan v. Roemer, 52 N. J. L. 53, 57, 18 Atl. 858; Edelman v. Latshaw, 180 Pa. St. 419, 36 Atl. 926. In Mayo v. Latham, 159 Mich. 136, 123 N. W. 561, the statement of a selling agent that the price asked was cheaper than the buyer could procure the goods elsewhere was held merely a statement of opinion. Cf. Stout v. Caruthersville Hardware Co., 131 Mo. App. 520, 110 S. W. 619. Some early cases in Massachusetts and Maine treated statements of cost as similar to statements of value and, therefore, as not ccnstituting fraud, though made with intent to deceive, but this doctrine

has been discredited by the cases cited above; and although followed in a few jurisdictions must be regarded as erroneous. See Holbrook v. Connor, 60 Me. 578, 11 Am. Rep. 212; Bishop v. Small, 63 Me. 12; Richardson v. Noble, 77 Me. 390; Davis v. Reynolds, 107 Me. 61, 77 Atl. 409; Hemmer v. Cooper, 8 Allen, 334; Cooper v. Lovering, 106 Mass. 77; Way v. Ryther, 165 Mass. 226, 42 N. E. 1128; Gassett v. Glazier, 165 Mass. 473, 43 N. E. 193; Boles v. Merrill, 173 Mass. 491, 494, 53 N. E. 894, 73 Am. St. Rep. 308. See also Mackenzie v. Seeberger, 76 Fed. 108, 40 U. S. App. 188, 22 C. C. A. 83; Tuck v. Downing, 76 Ill. 71; Elerick v. Reid, 54 Kans. 579, 38 Pac. 814; Sowers v. Parker, 59 Kans. 12, 51 Pac. 888; Peck v. Morgan (Tex. Civ. App.), 156 S. W. 917.

23 Cross v. Bouck, 175 Cal. 253, 165 Pac. 702; Vouros v. Pierce, 226 Mass. 175, 115 N. E. 297.

24 Zimmern v. Blount, 238 Fed. 740, 151 C. C. A. 590; Southern Trust Co. v. Lucas, 245 Fed. 286, 157 C. C. A. 478; Cruess v. Fessler, 39 Cal. 336; Loaiza v. Superior Court, 85 Cal. 11, 30, 24 Pac. 707, 9 L. R. A. 376; Edmonds v. Wilcox, 178 Cal. 222, 172 Pac. 1101; McDowell v. Caldwell, 116 Iowa, 475; Evans v. Palmer, 137 Ia. 425, 114 N. W. 912; Dawe v. Morris, 149 Mass. 188, 191, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404; Welch v. Olmstead, 90 Mich. 492, 51 N. W. 541; Maxted v. Fowler, 94 Mich. 106, 53 N. E. 921; Griffin v. Farrier, 32 Minn. 474, 21 N. W. 553; Haven . Neal, 43 Minn. 315, 45 N. W. 612; Schmidt v. Thompson, (Minn. 1918), 167 N. W. 543; Giles v. Horner, 97 Neb. 162, 149 N. W. 333; Henry v. Collier, (Okl. 1918),

false statement by a broker that his principal would not take less than a certain price, so far as it involves a statement of present fact, is equivalent only to a false statement of the estimate of value placed upon the property by the principal.25 But statements as to the pecuniary condition of a buyer, even though expressed in somewhat indefinite language, may involve the assertion as a fact that he has sufficient means to make his payment for what he buys sure. 26

§ 1493. Illustrations in contracts for the sale of real estate. The same principles are applicable to representations in sales of real estate as in sales of chattels. A statement by a vendor of real estate concerning his title, when stated as his conclusion from facts equally within the knowledge of the purchaser, is matter of opinion. 27 But an assertion of title may be made as a fact. 28 So statements in regard to particular incumbrances, 29 or taxes, 30 are statements of fact; as is a positive statement of

169 Pac. 636; Ward v. Jenson, 87 Or. 314, 170 Pac. 538; Byrne v. Stewart, 124 Pa. St. 450, 17 Atl. 19. See also Adan v. Steinbrecher, 116 Minn. 174, 133 N. W. 477; Dresher v. Becker, 88 Neb. 619, 130 N. W. 275; Vaughan v. Exum, 161 N. C. 492, 77 S. E. 679; Crompton v. Beedle, 83 Vt. 287, 75 Atl. 331, 30 L. R. A. (N. S.) 748.

25 The statement was therefore held not actionable in Bradley v. Oviatt, 86 Conn. 63, 84 Atl. 321, 42 L. R. A. (N. S.) 828. Cf. Henry v. Collier, (Okl. 1918), 169 Pac. 636.

Thus a statement falsely made that a man was doing a "safe business" and that his "note was sure to be paid" is fraud. Thompson v. Rose, 16 Conn. 71, 41 Am. Dec. 121. So a statement that a note indorsed by the firm of the speaker was as "good as the Bank of England," when in fact the firm was insolvent, was a fraud and it was held immaterial whether the speaker knew of the insolvency or not. Rothschild v. Mack, 115 N. Y. 1, 21 N. E. 726. Statements in regard to a corporation that it was

doing a good business and making money were held actionable deceit when made by one who knew that the business was being carried on at a loss. Sherman v. Smith (Ia.), 169 N. W. 216. In Vermont, however, it was held that the false statement of a buyer that he was "safe to be trusted and given credit" did not amount to fraud. Jude v. Woodburn, 27 Vt. 415. But cf. Corey v. Boynton, 82 Vt. 257, 72 Atl. 987.

27 Martin v. Wharton, 38 Ala. 637; Fitzhugh v. Davis, 46 Ark. 337; Choate v. Hyde, 129 Cal. 580, 62 Pac. 118; Drake v. Latham, 50 Ill. 270; Conwell v. Clifford, 45 Ind. 392; Hoyt v. Bradley, 27 Me. 242; Perkins v. Trinka, 30 Minn. 241, 15 N. W. 115; Herman v. Hall, 140 Mo. 270, 41 S. W. 733; Fellows v. Evans, 33 Ore. 30, 53 Pac. 491.

28 Carr v. Sanger, 138 N. Y. App. Div. 32, 122 N. Y. S. 593.

29 Carpenter v. Wright, 52 Kan. 221, 34 Pac. 798.

30 Wright v. United States Mtge. Co. (Tex. Civ. App.), 42 S. W. 789. See

the area of the land. Even though the boundaries are pointed out this is true 32 A peculiar Massachusetts view to the contrary on this last point,33 has been held inapplicable where the representation of area is accompanied by a further representation express or implied that the contents have been determined by survey.34 Representations of the value of land stand on the same footing as similar statements in regard to goods,35 and are generally not actionable, but may be if accompanied by false statements of the basis of opinion, or even otherwise under the principles stated in the following section. The statement that wells on the land will supply water sufficient for a stated number of cattle,37 or that the growing timber would make stated quantity of lumber,38 have been held statements of

also Matlack v. Shaffer, 51 Kan. 208, 32 Pac. 890, 37 Am. St. 270.

31 Morris v. Courtney, 120 Cal. 63, 52 Pac. 129; Perkins Mfg. Co. v. Williams, 98 Ga. 388, 25 S. E. 556; Peake v. Walton, 52 Ill. App. 90; Ledbetter v. Davis, 121 Ind. 119, 22 N. E. 744; Moore v. Harmon, 142 Ind. 555, 41 N. E. 599; Worcester v. Cook, 220 Mass. 539, 108 N. E. 511; Stearns v. Kennedy, 94 Minn. 439, 103 N. W. 212; Beardsley v. Duntley, 69 N. Y. 577; Griswold v. Gebbie, 126 Pa. 353, 17 Atl. 673, 12 Am. St. 878; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313.

32 Lovejoy v. Isbell, 73 Conn. 368, 47 Atl. 682; O'Neill v. Conway, 88 Conn. 651, 92 Atl. 425; Estes v. Odom, 91 Ga. 600, 18 S. E. 355; Antle v. Sexton, 137 Ill. 410, 27 N. E. 691; Boddy v. Henry, 113 Ia. 462, 85 N. W. 771, 53 L. R. A. 769; Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; Starkweather v. Benjamin, 32 Mich. 305; McGhee v. Bell, 170 Mo. 121, 135, 150, 70 S. W. 493, 59 L. R. A. 761; Paine v. Upton, 87 N. Y. 327, 41 Am. Rep. 371; May v. Loomis, 140 N. C. 350, 52 S. E. 728; Cawston v. Sturgis, 29 Or. 331, 43 Pac. 656; Walling v. Kinnard, 10 Tex. 508, 60 Am. Dec. 216.

33 Medbury v. Watson, 6 Met. 246,

39 Am. Dec. 726; Mooney v. Miller, 102 Mass. 217. These cases were followed in Mabardy v. McHugh, 202 Mass. 148, 88 N. E. 894, 23 L. R. A. (N. S.) 487, 132 Am. St. Rep. 484, on the principle of stare decisis, though the court admitted the doctrine was opposed to the weight of authority and probably undesirable. It may be questioned whether those who are trying to commit what is certainly a moral fraud can fairly complain if the previously existing law is tightened sufficiently to catch them.

34 Worcester v. Cook, 220 Mass. 539, 108 N. E. 511.

35 McCabe v. Kelleher (Oreg.), 175 Pac. 608, and see the preceding section.

36 See Van Vliet &c. Co. v. Crowell (Ia.), 149 N. W. 861; Thaler v. Niedermeyer, 185 Mo. App. 257, 170 S. W. 378; Howard v. Duncan, 94 Neb. 685, 144 N. W. 169; Wustrack v. Hall, 95 Neb. 384, 145 N. W. 835; Sleeper v. Smith, 77 N. H. 337, 91 Atl. 866; Mount v. Loizeaux, 86 N. J. 511, 92 Atl. 593; Pate v. Blades, 163 N. C. 267, 79 S. E. 608; Robertson v. Frey, 72 Oreg. 599, 144 Pac. 128.

37 Bondurant v. Crawford, 22 Ia. 40. Cf. Hill v. Wilson, 88 Cal. 92, 25 Pac. 1105.

38 Longshore v. Jack, 30 Ia. 298.

opinion; and doubtless they might be phrased in such a way or the circumstances might be such that the holding would be right. But a positive statement that a certain amount of hay had been cut, 39 that minerals were found on the premises, 40 that the land is "rich," 41 or as good and productive as another farm, 42 have been held sufficiently definite statements of fact to afford basis for relief.

§ 1494. Liability for fraudulent statements of opinion.

There is a growing unwillingness on the part of the courts here as in the law of warranty to allow statements to be made without liability, which are calculated to induce, and do induce, action on the part of the hearer. Where the statement is made with fraudulent intent, there is the greater reason for regarding it as a ground of liability if the natural impression given by the statement is that certain matters of fact are true, even though the statement is couched in the form of an opinion or relates to a matter as to which certainty is impossible. 43 Moreover, even if a statement is confessedly merely an opinion, and is understood to be such, nevertheless, it is an assertion of a fact; namely, that the speaker has a certain opinion, and this fact may be one upon which the other party relies, and perhaps justifiably, in entering into the bargain.44 It has been held that even å promCf. Glaspie v. Keator, 56 Fed. 203, 5 C. C. A. 474; Chase v. Boughton, 93 Mich. 285, 54 N. W. 44.

"Coon v. Atwell, 46 N. H. 510.

Green v. Turner, 80 Fed. 41; Hasse v. Freud, 119 Mich. 358, 78 N. W. 131.

41 Boltz v. O'Conner, 45 Ind. App. 178, 90 N. E. 496.

42 Stonemets v. Head, 248 Mo. 243, 154 S. W. 108.

43 The remarks of Bowen, L. J., in Smith v. Land, etc., Corporation, 28 Ch. D. 7, 15, are worth observing: "It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both parties, what one of

them says to the other is frequently nothing but an expression of opinion. The statement of such opinion is in a sense a statement of a fact, about the conditions of a man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion." See also Stone v. Pentecost, 206 Mass. 505, 92 N. E. 1021; Noyes v. Meharry, 213 Mass. 598, 100 N. E. 1090.

44 See Spead v. Tomlinson, 73 N. H. 69, 59 Atl. 381, 68 L. R. A. 432; Sleeper v. Smith, 77 N. H. 337, 91 Atl. 866

ise amounts to a representation of fact that the promisor is of a certain state of mind. 45 Still more clearly an expression of opinion is an assertion that the speaker is of a certain state of mind. The authorities recognize that if an opinion is falsely and fraudulently rendered by one professing to have expert skill, or special knowledge, it is legal fraud. 46 And a few decisions hold with logical correctness that a dishonest statement of opinion is always a dishonest statement of fact.47 It may fairly be urged, therefore, that if a misstatement of opinion does not ordinarily amount to actionable fraud it cannot be because the statement is one of opinion merely, for misstatements of opinion may be actionable; but rather because it is unreasonable to place reliance on such statements unless made by one who has, or purports to have, expert knowledge or peculiar means of information not accessible to the other party; and that it is assumed that no reliance was placed on the statements unless made by such a person.

Ouilette v. Theobald, 78 N. H. 547; 103 Atl. 306, also infra, § 1488.

45 Ibid.

45 McGar v. Williams, 26 Ala. 469, 62 Am. Dec. 739; Jarratt v. Langston, 99 Ark. 438, 138 S. W. 1003; Edwards Barron Est. Co. v. Woodruff Co., 163 Cal. 561, 126 Pac. 351, 42 L. R. A. (N. S.) 125; Worley v. Moore, 77 Ind. 567; Coulter v. Clark, 160 Ind. 311, 66 N. E. 739; Picard v. McCormick, 11 Mich. 68; Eaton v. Winnie, 20 Mich. 156, 4 Am. Rep. 377; Kost v. Bender, 25 Mich. 515; Coulter v. Minion, 139 Mich. 200; Griffin v. Farrier, 32 Minn. 474, 21 N. W. 553; Carlton v. Hulett, 49 Minn. 308, 51 N. W. 1053; Estell v. Myers, 54 Miss. 174; Champion Funding & Foundry Co. v. Heskett, 125 Mo. App. 516, 102 S. W. 1050; People v. Peckens, 153 N. Y. 576, 591, 47 N. E. 883; Erie Iron Works v. Barber, 106 Pa. St. 125, 51 Am. Rep. 508; O'Brien v. Von Lienen (Tex. Civ. App.), 149 S. W. 723. See also King v. Doolittle, 1 Head, 77, 84.

47 Phelps v. Grady, 168 Cal. 73, 141

Pac. 926; Macdonald v. De Fremery, 168 Cal. 189, 142 Pac. 73; Sleeper v. Smith, 77 N. H. 337, 91 Atl. 866. See also Tillis v. Smith Sons Lumber Co., 188 Ala. 122, 65 So. 1015. In the New Hampshire case above cited, the court quoting from one of its earlier decisions said: "When a person gives his opinion, the statement that it is his opinion includes one that he believes what he has said to be the truth; in other words, that what he has stated as his opinion is his opinion. Every expression of opinion contains at least that one statement of fact; consequently a person can state what he knows to be false, for the purpose of inducing another to change his position, when he pretends to express his opinion as to any matter, as well as when he pretends to state facts in relation to it. In such a case the falsity of the statement consists in stating something as his opinion which is not his opinion." Spead v. Tomlinson, 73 N. H. 46, 62, 59 Atl. 376, 381, 68 L. R. A. 432.

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