cases of a sale of fresh dressed meat, by the party slaughtering the animals, that they were not heated before being killed; and as some of my associates are averse to any expression whatever upon that question at this time, what is said must be regarded as an individual view, rather than that of the court. My attention has not been called to a decision in this State covering that precise question. It was determined in Divine v. McCormick, 50 Barb. 116, that in the sale of a heifer for immediate consumption, a warranty that she is not diseased and unfit for food is implied. That decision is well founded in principle, and is in accordance with a sound public policy, which demands that the doctrine of caveat emptor shall be still further encroached upon, rather than that the public health shall be endangered. I see no reason for applying the rule to one who slaughters and sells to his customers for immediate consumption, and denying its application to one who slaughters and sells to another to be retailed by him. In each case it is fresh meat intended for immediate consumption. The rule is well settled by the courts of last resort in many of the States, that a vendor of an article, manufactured by him for a particular purpose, impliedly warrants it against all such defects as arise from his unskilfulness either in selecting the materials, or in putting them together and adapting them to the required purpose. See cases cited in 18 Alb. L. J. 324. One who prepares meat for the wholesale market may be said to come within that rule; because he purchases the cattle, determines whether they are healthy and in proper condition for food, and upon his skill in dressing and preparing the meat for transportation a long distance its quality and condition, as an article of diet for the consumer, largely depends. In two of the States at least, it is held that where perishable goods are sold to be shipped to a distant market, a warranty is implied that they are properly packed and fit for shipment, but not that they will continue sound for any particular or definite period. Mann v. Everston, 32 Ind. 355; Leopold v. Van Kirk, 27 Wis. 152. (2) The respondent insists that the act of defendants' agent in selling some sixty quarters of beef, before the car reached Elmira, when the defendants, after making a personal examination, immediately shipped that which remained unsold to the plaintiff, constituted a waiver of their claim for damages. It is undoubtedly the rule that in cases of executory contracts, for the sale and delivery of personal property, if the article furnished fails to conform to the agreement, the vendee's right to recover damages does not survive an acceptance of the property, after opportunity to ascertain the defect, unless notice has been given to the vendor, or the vendee offers to return the property. Reed v. Randall, 29 N. Y. 358; Beck v. Sheldon, 48 id. 365; Iron Co. v. Pope, 108 id. 232. But when there is an express warranty, it is unimportant whether the sale be regarded as executory or in præsenti, for it is now well settled that the same rights and remedies attach to an express warranty in an executory as in a present sale. Day v. Pool, 52 N. Y. 416; Parks v. Axe Co., 54 id. 586; Dounce v. Dow, 57 id. 16; Brigg v. Hilton, 99 id. 517. In such cases, the right to recover damages for the breach of the warranty survives an acceptance, the vendee being under no obligation to return the goods. Indeed his right to return them, upou discovery of the breach, is questioned in Day v. Pool, supra. And Judge Danforth in Brigg v. Hilton, supra, after a careful review of the leading authorities upon the question, states the rule as follows: "Where there is an express warrauty, it is, if untrue, at once broken, and the vendor becomes liable in damages, but the purchaser cannot, for that reason, either refuse to accept the goods or return them." Second Division, Jau. 14, 1890. Fairbank Canning Co. v. Metzger. Opinion by Parker, J. Reversing 43 Huu, 71.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

CHECKS-FICTITIOUS PAYEE.-Where, by the fraud of a third person, a depositor of a bank is induced to draw his check payable to a non-existing person or order, the drawer being in ignorance of the fact and intending no fraud, the bank on which the check is so drawn is not authorized to pay it, and charge the amount to the account of its customer, on the indorsement of the party presenting it, although it appears to have been previously indorsed by the party named as payee. It is evident, both upon reason and the authority of Dodge v. Bank, 20 Ohio St. 234, that the circumstances under which the plaintiff was induced to give the check, even though calculated to arouse suspicion on her part, cannot modify the duty required of the bank in the matter of paying or not paying the check. It is not claimed that the bank had any knowledge of how or under what circumstances Grimes had obtained the check, and there is no finding of any such course of dealing between the bank and the plaintiff as would have authorized it to depart from the general duty of a bank in paying the checks of its customers drawn payable to a certain person or order. It was its duty to pay to the person named or his order, and to withhold payment until it was satisfied, both as to the identity of the payee and the genuineness of his signature. Morse Bank., § 474; Robarts v. Tucker, 16 Q. B. Div. 560, per Maule, J., at p. 578. It is found that the bank made the usual inquiries respecting the identity of Grimes, and in other respects was ordinarily careful and prudent in relation to the transaction; but this must be taken in connection with the further fact that Grimes was not the payee of the check, and that his indorsement, without the genuine indorsement of the payee, could confer no title upon the holder of the check, or any interest in it, as against the drawer. "There is no doubt," says Lord Kenyon in Tatlock v. Harris, 3 T. R. 181, "but that the indorsee of a bill of exchange, payable to order must, in deriving his title, prove the handwriting of the first indorser." See Mead v. Young, 4 T. R. 28, 30; 2 Pars. Notes & B. 595. The indorsement on the check, purporting to be that of the payee, Brown, had been placed there by Grimes, and was either a forgery or a fraud, and for the purposes of this case, it is not material which it is termed. As to it the bank acted upon the representations of Grimes, and did not otherwise know whether it was genuine or not. As said in Dodge v. Bank, 30 Ohio St. 1: "The rightful possession of a check by no means carries with it or implies a right to demand or receive payment of it, without the genuine indorsement of the person to whose order it is made payable; and if a banker accept or undertake to pay a check, "he must see to it, at his peril, that he pays according to the terms of the order, and to the party named therein, or to one holding it under the genuine indorsement of such payee. ** * And this is true whether the defendant exercised the degree of caution which bankers usually do in such cases or not. The question is, was the check paid to the party to whom, by its. terms, it was made payable?" Therefore the court rightly concluded, as a question of law from the facts found, that the payment of the check by the defendant was not authorized by the plaintiff, and that it could not rightfully be charged to her account. The fact that the check was made payable to a person who had no existence does not alter the rights of the plaintiff as against the bank, for she supposed that Brown was a real person, and intended that payment should be made to such persou. The doctrine that treats a check or bill made payable to a fictitious person as one made payable to bearer, and so negotiable without indorsement, applies only where it is so drawn with the knowledge of the

parties. Tatlock v. Harris, 3 T. R. 174, 180; Vere v. Lewis, id. 182; Minet v. Gibson, id. 481; same case in the House of Lords on error, Gibson v. Minet, 1 H. Bl. 569; Collis v. Emett, id. 313; Gibson v. Hunter, 2 id. 187. The doctrine that a bill payable to a fictitious person or order is equivalent to one payable to bearer had its origin in these cases, which all grew out of bills drawn by Levisay & Co., bankrupts, payable to a fictitious person or order, and were accepted by Gibson & Co.; but it will be noticed that the holding in each case was upon the express ground that the acceptor knew at the time of his acceptance that the bill was payable to a fictitious person; and but for this fact the fictitious indorsement would have been held to be a forgery-some of the judges expressing a doubt whether it was not so, although its character was known to the acceptor. 3 T. R. 181. These cases will be found reviewed in a note to Bennett v. Farnell, 1 Camp. 130. It was held in this case that a bill made payable to a fictitious person or order is neither pay. able to the order of the drawer or bearer, but is completely void. But in an addendum to the case, at page 180c of the report, Lord Ellenborough observes that this holding must be taken with this qualification: "Unless it can be shown that the circumstance of the payee being a fictitious person was known to the acceptor." The rule is stated with this qualification in Byles Bills,82. See also to the same effect Forbes v. Espy, 21 Ohio St. 483; 1 Rand. Com. Paper, §§ 162-164; 2 Pars. Notes & B. 591, and note a. Mr. Daniels, in his work on Negotiable Instruments (§ 139), states the rule to be general, but as shown by Mr. Randolph, the cases do not bear out the text. 1 Rand. Com. Paper, § 164, note 4. And upon principle we do not see how the law could be held to be otherwise. For if the fictitious character of the payee is unknown to the drawer, whoever indorses the paper in that name with intent to defraud perpetrates a forgery, and the indorsement is void; a general intent to defraud being sufficient to constitute the offense. The case of Lane v. Krekle, 22 Iowa, 399, is not in point, for there the note was made payable to a fictitious person or bearer," and passed by delivery without indorsement. The case of Phillips v. Thurn, 114 E. C. L. 694, cited by the learned judge, is clearly distinguishable from the case before us. There the signature of the drawer as well as the indorsement was a forgery; but the defendant, the acceptor, was held liable because the plaintiff discounted the paper, relying in good faith upon the acceptance of the defendant. The case was finally disposed of on a case stated, reported in L. R., 1 C. P. 463. The ground of the decision appears from the following observations of Keating, J. (p. 472): "I think, upon the facts stated in this special case, that it was not competent to the defendant to deny the genuineness of this bill. He knew that the plaintiffs were willing to advance money upon the bill only upon his vouching by his acceptance of it the authenticity of the drawing. His acceptance amounted to a representation to the plaintiffs which enabled the person representing Plana to obtain money from the plaintiffs on the bill." The decision in this case simply followed a well-recognized principle in the law of notes and bills. It is thus stated by Mr. Smith: "If the drawer's signature be forged, the drawee, if he accepts the bill, is bound to pay it, provided it be in the hands of a holder bona fide and for value, for the drawee's acceptance admits the drawer's handwriting to be genuine." Smith Merc. Law, 151. Now, Mrs. Armstrong can in no way be said to have affirmed by any act of hers that the indorsement upon the check was genuine, for there was no indorsement on it when it left her hands. The case of Rogers v. Ware, 2 Neb. 29, cited by counsel for defendant in error, does not support his contention. The case of Ort v. Fowler, 31 Kans. 478, was rested upon a number of grounds; and in so far as it may have beeu

on the ground that a note made payable to a fictition person or order is in effect payable to bearer, irrespective of the knowledge of the maker, it simply fol lows the authority of 1 Danl. Neg. Inst., § 139, which we have shown, is not borne out by the cases relied on. If the drawer of a check, acting in good faith, makes it payable to a certain person or order, supposing there is such person, when in fact there is none, no good reason can be perceived why the banker should be excused if he pay the check to a fraudulent holder upon any less precautions than if it had been made payable to a real person; in other words, why he should not be required to use the same precautions in the one case as in the other that is, determine whether the indorsement is a genuine one or not. The fact that the payee is a non-existing person does not increase the liability of the bank to be deceived by the indorsement. The fact is that an ordinarily prudent banker would be less liable to be deceived into a mistaken payment by a fictitious indorsement such as this was than by a simple forgery. The determination of the character of any indorsement involves the ascertainment of two things: (1) The identity of the indorser; and (2) the genuineness of his signature; and uo careful banker would pay upon the faith of the genuineness of any name until he had fully satisfied himself both as to the identity of the person and the gen uineness of his signature. Now, a careful banker may be deceived as to the signature of a person with whose identity he may be familiar; but he is less liable to be deceived when both the signature and the person whose signature it purports to be are unknown to him. In making the inquiry in such case to warrant him in acting, he will either learn that there is no such person, or that no credible information can be obtained as to his existence, which, with an ordinarily prudent banker, would be the same as actual knowledge that there is no such person, and he would withhold payment, as he would have the right to do in such case. But still, if he should be deceived as to the existence of the person, he would, nevertheless, require to be satisfied as to the genuineness of the signature. Of this however he could not be through his skill in such matters, and on which bankers ordinarily rely, for he would be without any standard of comparison, and he could have no knowledge of the bandwriting of the supposed person, for there is no such person. So that if he acts at all it must be upon the confidence he may place in the knowledge of some other person, and if he chose to act upon this, and make, instead of withholding, payment, he acts at his peril, and must sustain whatever loss may ensue. It is a saying, frequently repeated in "The Doctor and Student," that "he who loveth peril shall perish in it." In other words, where a person has a safe way, and abandons it for one of uncertainty, he can blame no one but himself if he meets with misfortune. Ohio Sup. Ct., Oct. 29, 1889. Armstrong v. Pomeroy Nat. Bank. Opinion by Minshall, C. J.

CONSTITUTIONAL LAW-TRIAL-PRESENCE OF DEFENDANT. Mansfield Digest, Arkansas, section 2213, providing that a defendant on trial for a felony must be present at the trial, but that if he escapes from custody after commencement of trial, or "if on bail, shall absent himself during the trial," the trial may pro gress to a verdict, does not violate the constitutional guaranty that the accused shall have the right to be confronted with the witnesses against him. Neither direct authority nor analogy are lacking in the con struction of this guaranty. For two hundred years it has been ruled in England that where a witness is abseut by the fraudulent procurement of a defendant the deposition of the witness taken on a preliminary hearing may be read in evidence (Lord Morley's Case, 6 St. Tr. 0; Harrison's Case, 12 id. 851; Reg. v.

for her appearance. This obviously was a very generous act upon the part of the attorney and the court, but affords no precedent in support of the respondent's right of action. The jurisdiction of the courts of this State cannot be extended to acts of charity or generosity, however strong the kindly impulses of the members thereof may incline them in that direction; but it must be confined strictly to the adjudication of matters in accordance with the rules of statutory aud common law. Oregon Sup. Ct., Oct. 28, 1889. Morin v. Multnomah County. Opinion by Thayer, C. J.

EVIDENCE-OF SETTLEMENT OF TOWN-ENCYCLOPEDIA.-J. W. Saunders testified, in effect, that about six months after his brother absconded from Tennessee, which occurred in 1834 or 1835, he received a

letter from him, signed "Thomas Bean," postmarked and mailed at Camden, Ark. In order to disprove this, contestant offered to read in evidence so much of the text of the American Encyclopedia as related to Camden, Ark., and which contained the statement that that town was settled in 1842, and that previous to that time it had only been a place at which bunters and trappers congregated, and had been known by the name of "Ecore a Fabre." The applicant objected to the introduction of the evidence, and the court sustained the objection. In this there was no error. If the fact be as contestant sought to prove, there is better and more satisfactory evidence than the statements in the work offered in evidence by contestant. The records of the post-office department will probably supply indisputable testimony as to the date when the post-office at Camden, Ark., was established, and when it received that name. Tex. Sup. Ct., Nov. 19, 1889. Howard v. Russell. Opinion by Gaines, J.

PROHIBITED PHYSICIAN.- Dr. Wood was called in to consult with Dr. Henderson three or four days after the will in question had been executed. He says: "I remained at her residence all night, and had two good, long conversations with her on the subject of her disease. She gave me a very satisfactory description of her disease." Being then asked his opinion as to the condition of her mind, he says: "I believe, and am of the opinion, that Mrs. 1sh was perfectly sound in her mind at the time I had the conversations with her." This and other portions of the deposition were objected to on the ground that Dr. Wood was, under the statute, an incompetent witness, and could not disclose the matters testified to by him. Section 4017, Revised Statutes, 1879, provides: "The following persons shall be incompetent to testify: *** Fifth. A physician or surgeon, concerning any information which he may have acquired from any patient, while attending him in a professional character, and which information was necessary to enable him to prescribe for such patient as a physician, or do any act for him as a surgeon." This statute is very emphatic, and it places the seal of secrecy upon information acquired by observation as well as that acquired by oral communication. Gartside v. Insurance Co., 76 Mo. 446. There can be no doubt but the information upon which Dr. Wood based his opinion was acquired from the testatrix while attending her in a professional character, and the information was necessary to enable him to give her and her attending physician advice concerning her disease. The opinion which he expresses is based upon the information thus acquired. The physician being prohibited from disclosing the information, he certainly cannot give an opinion based upon his knowledge thus acquired. He is no more at liberty to give an opinion upon such knowledge than he is to detail the facts revealed to him by the patient. The protection afforded by the statute may however be waived by the patient, and he does waive it by calling the physician to give evidence of information acquired in a professional character.

Groll v. Tower, 85 Mo. 249; Carrington v. City of St. Louis, 89 id. 212; Blair v. Railroad Co., id. 337. In the first of these cases the widow brought suit to recover damages for injuries received by her husband, and from which injuries he died. It was there said: "Where the evidence of the attending physician is offered by the patient or his representatives, it is competent and admissible. When it is offered by the opposite party, the physician cannot testify, against the objection of the patient or his representatives." And accordingly it was ruled that the physician should have been allowed to testify, when offered by the widow. The Michigan statute is in substance and effect the same as our statute. Comp. Laws 1871, §5943 In Fraser v. Jennison, 42 Mich. 209, a will dated in

May, 1877, was contested on various grounds, and

ence.

among them unsoundness of mind and undue influ The proponents of the will, who were special administrators appointed by the probate court, proved by a physician that he had been employed by the testator, in a professional capacity, from September, 1876; and the physician was then allowed to testify that the mind of the deceased was sound, and to describe the particulars of the disease. Cooley, J., after quoting the statute and saying the trial court did not err, uses this language: This statute, as we have held, covers information acquired by observation while the physician is in attendance upon his patient, as well as com munications made by the patient to him; *** but the rule it establishes is one of privilege for the protection of the patient, and he may waive it, if he sees fit. Scrippe v. Foster, 41 Mich. 742. And what he may do in his life-time, those who represent him after his death may also do, for the protection of the interests they claim under him." On the other hand, a different ruling prevails in the States of New York and Indiana. Section 833 of the New York Code relates to ministers, section 835 to attorneys, and section 834 provides that "a person duly authorized to practice physic or surgery shall not be allowed to disclose any information which he acquired in attending a patient in a professional capacity, and which was necessary to enable him to act in that capacity." And section 836 provides that "the last three sections apply to every examination of a person as a witness, unless the provisions thereof are expressly waived by the person confessing, the patient or the client." It seems to have been the practice in the Surrogate Court to admit the evidence of the attending physician of the testator in the probate of wills. Allen v. Public Adm'r, 1 Bradf. 221; Whelpley v. Loder, 1 Dem. 368. But in Westover v. Insurance Co., 99 N. Y. 56, which was an action by an executor on a policy of insurance, it was held by the Court of Appeals that the executor could not waive the privilege of the statute; and the argument goes to the extent, we think, of holding that no one but the patient himself can make the waiver. Renihan v. Denuin, 103 N. Y. 577, was a case tried on appeal from the judgment of a Surrogate Court, admitting a will to probate, and it was held that the attending physician of the deceased was not a compe tent witness. This ruling was followed in contested will proceedings in the subsequent cases of In re Coleman, 111 N. Y. 220; Loder v. Whelpley, id. 239. The Indiana statute is not essentially different from the statute of this State; and in Heuston v. Simpson, 115 Ind. 62, the court followed the rule of the Court of Appeals of New York in a testamentary case. The statute of this State and that of New York prohibit the physician from disclosing the information acquired under the circumstances specified; but the New York statute goes further, and says the prohibition shall ap ply to every examination of the designated personsa physician being one of them-unless "expressly waived by the patient." It not only creates the privi lege, but defines by whom it may be waived, and says

the waiver must be express. Our statute contains no such qualification. The difference in the statutes may fairly lead to different results. Notwithstanding our statute provides for no exception, still it deals with a privilege, and it must be taken as established law that the privilege may be waived by the patient; and we have held that it may be waived by the representative, and in this our ruling accords with that of the Supreme Court of Michigan, under a like statute. If the patient may waive this right or privilege for the purpose of protecting his rights in a litigated cause, we see no substantial reason why it may not be done by those who represent him after his death, for the purpose of protecting rights acquired under him. Some light may be thrown upon this question by analogy from the rules of law applied to confidential communications between client and attorney. Such communications, it is held in Russell v. Jackson, 9 Hare, 390, must not be revealed, in cases where the rights and interests of the client, or those claiming under him, come in conflict with the rights and interests of third persons; but this rule, it is held, does not apply to cases of testamentary disposition of property by the client. The disclosure in such cases, it is considered, can affect no right or interest of the client, and is therefore not within the reason of the rule.

Taylor says: "In stating that the privilege does not terminate with the death of the client, care must be taken to distinguish between cases where disputes arise between the client's representatives and strangers, and those in which both the litigating parties claim under the client." As to the latter class of cases, he says: "It would be obviously unjust to determine that the privilege should belong to the one claiming rather than to the other." 1 Tayl. Ev., § 928, p. 798. See also Blackburn v. Crawfords, 3 Wall. 175; Scott v. Harris, 113 Ill. 454. It is difficult to see why the rule of exclusion should apply in case of a physi cian, and not of an attorney. An attorney is declared, by the third clause of section 4017 of our statutes, to be incompetent to testify concerning communications made to him, "without the consent of the client." The clause in relation to physicians does not contain this quoted qualification, but the third clause is simply declaratory of the common law; and if the difference between the clauses argues any thing, it should be that the physician caunot testify, with or without the cousent of the patient. Whatever may have been the rule at common law, the statute places attorneys and physicians on substantially the same ground. We couclude, as before, that when the dispute is between the devisee and heirs at law, all claiming under the deceased, either the devisee or heirs may call the attending physician as a witness. Mo. Sup. Ct. Thompson v. Ish.

FRAUD-STATEMENT BY EXPERT.-If a vendor says to a purchaser that the price he asks is the same price that A. and B., who are in a like business, are selling at, he states a fact, and if he knowingly misrepresents, he is guilty of fraud. Assertions must be considered in the light of the subject-matter in respect to which they are made. The general doctrine is that a misrepresentation, unconnected with any misrepresentation of kind, quality or quantity, by the vendor, though false, affords no cause of action. Every person reposes at his peril in the opinion of others, when be has equal opportunity to form his own judgment. Mere expressions of matters of opinion, however strongly or positively made, though they are false, do not constitute actionable fraud. "Statements of mere matters of opinion or judgment, although known to be false, do not constitute fraud, in the absence of relations of trust and confidence." Wise v. Fuller, 29 N. J. Eq. 257. It is not fraud to aver strongly that the purchaser will make a good ayd profitable purchase by accepting the vendor's offer. It may be otherwise if,

in connection with the expression of opinion, there were false assertions of fact calculated, if true, to give a basis for the opinion. McAleer v. Horsey, 35 Md. 439. Mr. Justice Miller, in Chrysler v. Canaday, 90 N. Y. 272, says that a mere assertion by a vendor as to the value of the property offered by him for sale, although untrue, and known by him to be so, will not render him responsible to the vendee in damages. There must have been a want of knowledge on the part of the latter, and a purchase by him in entire reliance upon the representations made, or there must have been some artifice employed to prevent inquiry or the obtaining of knowledge by him. Chief Justice Shaw, in Page v. Bent, 2 Metc. 374, draws the distinction clearly, as follows: "The principle is well settled that if a person make a representation of fact as of his own knowledge, in relation to a subject-matter susceptible of knowledge, and such representation is not true, if the party to whom it is made relies and acts upon it as true, and sustains damage by it, it is a fraud and deceit, for which the party making it is responsible. * * * But in a matter of opinion, judgment and estimate, if one states a thing as of his own knowledge, if he in fact believes it, and it is not intended to deceive, it is not a fraud, although the matter thus stated is not in fact true. The reason is that it is apparent from the subject-matter that what is thus stated as knowledge must be considered and understood by the party to whom it is addressed as an expression of strong belief only, because it is a subject of which knowledge, in its strict sense, cannot be had." The statement by a vendor that the income from a property is greater than it in fact is, is a fraud for which an action will lie. Wise v. Fuller, 29 N. J. Eq. 257; Dimmock v. Hallett, L. R., 2 Ch. 21. So, while representations as to probable sales, or value or productiveness, are not actionable, a representation as to the income that had been derived from the royalty on a patent or the income of a business or a mill, or the yield of a mine, is the assertion of a fact for which, if false, the person making it must respond in damages. Crosland v. Hall, 33 N. J. Eq. 111. In Kost v. Bender, 25 Mich. 515, Mr. Justice Cooley held that a person, who during the negotiation for sale professed to have some peculiar scientific knowledge as to the probability of lands proving valuable for the production of oil, rendered himself liable to damages, if he made fraudulent representations in that respect. In Allen v. Hart, 72 Ill. 104, the action for fraud was maintained where the vendor had peculiar means of knowledge, which the veudee did not possess. In Peffley v. Noland, 80 Ind. 164, the vendor in the sale of a patent-right stated that he had a contract with certain persons to make the patented article at a certain price. This statement was false. The Indiana court ruled that the representation was of an existing fact, and not mere opinion, and therefore was actionable. For a reference to the numerous cases on the subject, see Cooley Torts, 565-567; Cowley v. Smyth, 46 N. J. Law, 382; Crosland v. Hall, 33 N. Š. Eq. 111. The principle to be extracted from the cases is that the false statement of a fact constitutes actionable fraud. The distinction is to be sharply drawn between the expression of an opinion as to a subject of which knowledge, in its strict sense, cannot be had, and the statement of a fact false within the knowledge of the party who makes it. If the vendor says price is very low, and as reasonable as he can afford to take," it is mere commendation of his goods, or, as some of the cases say, "dealers' talk," and the rule caveat emptor applies. But if the vendor says "that is the customary price; the price he charges others; and that A. and B. and C., who are in the same business, are selling at that price "-he states a fact, and if he knowingly misrepresents, he is guilty of a fraud which is actionable. N. J. Sup. Ct.. Dec. 11, 1889. Roemer v. Conlan. Opiniou by Van Syckel, J.

"the