the lots, will not, though false, justify a court in granting rescission of contracts of sale made by reason of them.1

Again a buyer, in general, is not liable for misrepresenting a seller's chance of obtaining a good price for his property; unless there be some peculiar relation between the parties implying or leading to special confidence.2 Nor can an action be maintained by the seller of his share in a trade against the buyer for persuading him to sell it at a certain price, by representing that certain partners whose names he would not disclose were to be joint purchasers, and that they would give no more than the particular sum; though in truth they had authorized the defendant to purchase it on the best terms he could, and though the defendant charged them with a higher price than he gave.3

In Massachusetts and Maine, and elsewhere, contrary to the rule obtaining in other states, it is held that misrepresentations by a vendor of the cost of an article, or what it has been sold for, or of offers made for it, are not the subject of an action; 5 and the same has been held of a vendor's false representation of the appraised value of property as set down by sworn officers, and of the market value of property, in ordinary cases.7 A statement moreover that certain lands

1 Anderson v. Hill, 12 Smedes & M. 679.

2 Fisher v. Budlong, 10 R. L. 525. 3 Vernon v. Keys, 4 Taunt. 488. 4 Van Epps v. Harrison, 5 Hill, 63; Page v. Parker, 43 N. H. 363; McFadden v. Robinson, 35 Ind. 24; Morehead v. Eades, 3 Bush, 121; Wise v. Fuller, 29 N. J. Eq. 257; Jackson v. Armstrong, 50 Mich. 65.

5 Medbury v. Watson, 6 Met. 246, 260; Hemmer v. Cooper, 8 Allen, 334; Manning v. Albee, 11 Allen, 622; Mooney v. Miller, 102 Mass. 220; Cooper v. Lovering, 106 Mass. 79; Bourn v. Davis, 76 Maine, 223; Richardson v. Noble, 77 Maine, 390; Long

v. Woodman, 58 Maine, 52; Martin v. Jordan, 60 Maine, 531; Holbrook v. Connor, ib. 578; Bishop v. Small, 63 Maine, 12; Schoelkopf v. Leonard, 8 Col. 159; Wiest v. Riggs, 4 Houst. 119. See Smith v. Newton, 59 Ga. 113; Race v. Weston, 86 Ill. 91; Barnard v. Colwell, 39 Mich. 215, where price of property was to be measured by previous cost, of which there was a misrepresen tation. The excess now paid was held recoverable. Further see Jackson v. Collins, 39 Mich. 557.

6 Bourn v. Davis, 76 Maine, 223. 7 Graffenstein v. Eppstein, 23 Kans. 443.

had large deposits of oil, and were of great value for manufacturing oil, has in Maine been held to be a mere statement of opinion. But a false and fraudulent statement, by the vendor, of the amount of hay cut upon a farm the previous year has, in the latter state and in New Hampshire, been held good ground for an action of deceit. It would doubtless be otherwise of representations of the amount of hay or wood to be cut on a farm.3 Misrepresentations of cost, rental, the selling price of bonds, the income from the royalty on a certain patent, or from other business, and the like made by a stranger to the title, may clearly be actionable. Indeed it is apprehended that the authorities which hold misrepresentations of such matters by the vendor actionable are well supported in principle.9

In a leading case just cited and often referred to,10 in which an action was brought for deceit in regard to the sale of a tannery, the following facts in substance appeared: The parties to the suit were at B, where the defendant resided, when

1 Holbrook v. Connor, supra, two judges dissenting. See Dawson v. Graham, 48 Iowa, 378.

2 Martin v. Jordan, 60 Maine, 531; Messer v. Smyth, 59 N. H. 41; Coon v. Atwell, 46 N. H. 510. See Rhoda v. Annis, 75 Maine, 17; Irving v. Thomas, 18 Maine, 418. But see Mooney v. Miller, 102 Mass. 217. So of the extent of sales of a patented article. Allin v. Millison, 72 Ill. 201. So of the number of subscribers to a newspaper. Harvey v. Smith, 17 Ind. 272. So of the age of a horse. Reid v. Flippin, 47 Ga. 273.

217.

272; Crosland v. Hall, 33 N. J. Eq. 111, and cases cited.

5 Manning v. Albee, 11 Allen, 520; s. c. 14 Allen, 7.

6 Crosland v. Hall, 33 N. J. Eq. 111, an important case.

7 lb., and cases cited; Wise v. Fuller, 29 N. J. Eq. 257.

8 Medbury v. Watson, 6 Met. 246, 259; Belcher v. Costello, 122 Mass. 189; Dole v. Wooldredge, 142 Mass. 161; Kenner v. Harding, 85 Ill. 264.

9 See cases cited ante, p. 492, note 4, and comp. Coolidge v. Goddard, 77 Maine, 578, misrepresentation by vendor

3 Mooney v. Miller, 102 Mass. of what shareholders in a company had

4 Ekins v. Tresham, 1 Lev. 102; s. c. 1 Sid. 146; Wilson v. Fuller, 3 Q. B. 68; Brown v. Castles, 11 Cush. 348, 350; Medbury v. Watson, 6 Met. 246, 260; Chrysler v. Canaday, 90 N. Y.

paid for their shares held actionable, on the ground of misrepresentation of the amount of the company's assets. See also Perkins v. Partridge, 30 N. J. Eq. 82.

10 Medbury v. Watson, supra.

the plaintiffs inquired in regard to a tannery. The defendant told them that W, who owned the tannery, was a shrewd man and knew the value of property; that the defendant could purchase the tannery for what W paid for it; that if the plaintiffs would return home, the defendant would effect the purchase, and that they (the plaintiffs) had better not go near W; that the defendant soon afterwards saw W and told him what the plaintiffs wanted, and that he (W) had 'better keep dark and not tell how much he gave for the tannery,' and defendant'would make $1,000 for him;' that the defendant thereby induced W to keep the matter secret, and effected the purchase of the tannery for the plaintiffs for $4,000, which sum the plaintiffs paid; that in fact W paid but $3,000 for the property; that a loss of more than $1,000 had been sustained by the plaintiffs; and that the defendant knew that W gave only $3,000 for the tannery. It was held that the plaintiff was entitled to recover; the court taking the distinction between misrepresentations made by a vendor and the same made by a stranger. It should be noticed that the representation was not of value strictly, but of cost; a false representation of what property is worth would not be actionable, though made by a stranger to the title, it seems.3

It has been held that the rule in regard to representations of value applies to representations of pecuniary ability of third persons to pay promissory notes made by them.3 In one of the cases just cited it appeared that the plaintiff had taken from the defendant certain notes of third persons; the defendant, it was alleged, representing that the makers were

1 The case also decides that the fact that the purchasers sold the property for what they paid for it was no defence to the action. The case might have been decided, it seems, on grounds of agency, the existence of a confidential relation between the parties to the suit. See Dole v. Wooldredge, 142 Mass. 161, where the defendant was considered not

the vendor but the plaintiffs' agent. See also Commonwealth v. Wood, 142 Mass. 459.

2 See Commonwealth v. Wood, 142 Mass. 459.

3 Homer v. Perkins, 124 Mass. 431; Belcher v. Costello, 122 Mass. 189. Belcher v. Costello, supra.

in good pecuniary circumstances and able to pay' the notes. The representation proved was that the makers were good.' It was held that this representation, taken by itself, was not a statement of fact but of opinion, and that a ruling at the trial that it was a representation of fact was wrong. But this is hard to understand; the ruling at the trial was cer tainly in conformity with the law in regard to general representations of solvency, and no distinction can be perceived. between a representation that A is solvent, and a representation that he is able to pay a note which he has made. If the note had been a check, and it had been fraudulently certified 'good,' could the certifying party have said that the expression was only opinion ?2 The cases under consideration are opposed to the authorities generally, throughout the country.3

2 See Bigelow, Estoppel, pp. 516 et seq., 4th ed.

1 See Morse v. Shaw, 124 Mass. 59; sentation, in cases near the border, like Homer v. Perkins, supra. the present, is a representation of fact or of opinion. Ante, pp. 140, 141. See also Messer v. Smyth, 59 N. H. 41. Representations of solvency have long had a fixed position; they are, in contemplation of law, representations of fact, and the jury should not be permitted to find them representations of opinion. And this should be true in all cases in which the language is not affected by external facts; the court should, it is believed, declare in such cases whether the language is that of fact or of opinion. This is well illustrated in Veasey v. Doton, 3 Allen, 380, Metcalf, J., in Hickey v. Morrell, 102 N. Y. 454, in Fruin v. Crystal Ry. Co., 89 Mo. 397, and in Bellairs v. Tucker, 13 Q. B. D. 562, Denman, J.

3 Weeks v. Burton, 7 Vt. 67; Bates v. Le Clair, 49 Vt. 229; Alexander v. Dennis, 9 Port. (Ala.) 174; Brooks v. Martin, 43 Ala. 360; Wilkinson v. Searcy, 74 Ala. 243; Simpson v. Moore, 5 Lea, 372; Weyh v. Boylan, 85 N. Y. 394; Smith v. Munroe, 84 N. Y. 354, 359; Smith v. Knickerbocker Ins. Co. ib. 589; Fleischman v. Stern, 90 N. Y. 110; Union Sav. Inst. v. Wilmot, 94 N. Y. 221; Tobey v. McAlister, 9 Wis. 463; Hoover v. Kilander, 83 Ind. 420; Plummer v. Farmers' Bank, 90 Ind. 386; Olvey v. Jackson, 106 Ind. 286; Hefner v. Dawson, 63 Ill. 403; Bradley v. Luce, 99 Ill. 234; McKown v. Furgason, 47 Iowa, 636; Marbourg v. McCormick, 23 Kans. 38; Walsh v. Morse, 80 Mo. 568. See also Burr v. Willson, 22 Minn. 206.

We have elsewhere commented upon the practice in some states of leaving to the jury the question whether a repre

Indeed the question whether a representation is of fact or of opinion is never, as such, a proper question for the jury. If the language is of double import, as in Smith v. Chadwick, 9 App. Cas. 187, post, p. 499, or if it was affected by external facts, as in Bradley v. Poole, 98

The rule however that representations of value will not be considered by the courts is not universal; we have elsewhere seen that if a fiduciary or confidential relation exists between the parties, representations of value made by the party holding the position of trust or confidence have the same effect as ordinary representations of fact. And these probably are not the only cases in which the law will take notice of such representations. If one of the parties to a sale assumes to have special knowledge of the value of the property, in regard to which the other, being known to be ignorant, trusts entirely to the good faith of the former, to the former's knowledge, it may be very proper to treat representations of value as standing upon the same ground as representations of fact.2 Of course if a statement of value be accompanied by a clear statement of fact calculated to induce action, the former may be disregarded, and the case considered as if only the latter were present.3

Mass. 169, it will be for the jury to find what was understood. And it may sometimes be left to the jury in such cases to say whether the man of average intelligence and prudence would act upon it. But that is as far as the matter should go. The jury should not be permitted to fritter away rights by raising metaphysical distinctions between fact and opinion; the question should be the plain one, How would the representation be apt to affect the conduct of an average man in the situation, in the actual and usual intercourse of men? See Hickey v. Morrell, supra, Danforth, J. The courts have not been helped in this matter by the use of such words as 'belief,' 'estimate,' 'judgment' and the like as equivalent to 'opinion.' Page v. Bent, 2 Met. 371, 374; Safford v. Grout, 120 Mass. 20, 25, and other cases. Ante, p. 140. All facts are more or less matters of belief,' 'estimate,' or

'judgment,' in the practical sense of those words.

1 Ante, pp. 264, 299.

2 Stover v. Wood, 26 N. J. Eq. 417; Bradbury v. Haines, 60 N. H. 123; Estell v. Myers, 54 Miss. 174; Griffin v. Farrier, 32 Minn. 474, citing Wilder v. De Cou, 18 Minn. 421; Haggarth v. Wearing, L. R. 12 Eq. 320; Pickard v. McCormick, 11 Mich. 68; Simar v. Canaday, 53 N. Y. 298, 306; Chrysler v. Canaday, 90 N. Y. 272; Cruess v. Fessler, 39 Cal. 336; Kost v. Bender, 25 Mich. 515. But there was further evidence of fraud in Griffin v. Farrier. 8 Miller v. Barber, 66 N. Y. 558; Bradley v. Luce, 99 Ill. 234; Allen v. Hart, 72 Ill. 104; Tabor v. Peters, 74 Ala. 90; Jackson v. Collins, 39 Mich. 557; Griffin v. Farrier, supra; Bradbury v. Haines, supra.

In Allen v. Hart there were false assertions as to the value of the terri