This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The elements of innocent misrepresentation are substantially the same as those of fraud except that the party who makes such false statement is acting in good faith.1 The theory entertained in some jurisdictions that a positive statement which is made without disclaiming personal knowledge amounts to an assertion of personal knowledge and hence amounts to fraud, no matter with what good faith such statement is made, extends the boundaries of fraud so as to include practically all operative misrepresentation.2
1 California. Ayers v. Southern Ac. fie Railroad Co., 173 Cal. 74, L. R. A. 1917F, 040. 150 Ac. 144.
Massachusetts. Long v. Inhabitants of Athol, 106 Mass. 407, 17 L. R. A. (N.S.) 96, 82 N. £. 665.
Michigan. Honder v. Reynolds, 105 Mich. 256, 161 N. W. 856.
New York. Leary v. Geller, 224 N. Y. 56, 120 N. E. 31.
North Dakota. Clark v. Northern Pacific Ry. Co., 36 N. D. 503, L. R. A. 1017E, 399, 162 N. W. 406.
To constitute misrepresentation, the statement must be one of fact. If it is clearly on its face a mere matter of opinion or of hearsay, or the statement is avowedly made on the authority of others, misrepresentation can not exist.3 Thus a statement in effect of one's opinion as to the value of certain book accounts,4 or of certain property,5 or of the location of certain land;6 or that a fuel-saving device was very valuable and would save fifty per cent, of the fuel;7 estimates of work, where not grossly inaccurate and where the adversary party is notified that they are merely approximate estimates, are not treated as positive statements of fact;8 or that a change in plans would not involve additional expense;9 or of the probable extent of personal injuries where such statement is understood as an opinion and is honestly entertained,10 or is expressed by one who has no expert knowledge,11 are not operative misrepresentations. A statement that a house was "good, safe, and fit to live in," is a statement of opinion and not of fact.12 A prediction is not a misrepresentation,13 as that a bridge would be built, an hotel erected, and streets graded, near a certain tract of land.14 In insurance contracts a representation to be operative must be one of fact. A bona fide opinion, even if erroneous, is not misrepresentation;15 as a mistaken opinion as to the cause of the death of insured's brother professedly given on information derived from others,16 or a statement by the examining physician that insured was a "fair" risk, the facts as to his physical condition being given.17 A promise is not a misrepresentation.18
2 See Sec. 314.
3 California. Taylor v. Ford, 131 Cal. 440, 63 Ac. 770; Ayers v. Southern Pacific Railroad Co., 173 Cal. 74, L. R. A. 1917F, 949, 159 Ac. 144.
Illinois. Security Trust Co. v. Tar-pey, 182 111. 52, 54 N. E. 1041 [affirming 80 111. App. 378]; Gillespie v. Fulton Oil & Gas Co., 236 111. 188, 86 N. E. 219.
Iowa. Seymour v. Chicago & Northwestern Ry. Co., 181 la. 218, 164 N. W. 352.
Kentucky. Yeomen of America v. Rott, 145 Ky. 604, 140 S. W. 1018.
Louisiana. Cole v. Mutual Life Ins. Co., 129 La. 704, 56 So. 645.
Massachusetts. Hillyer v. Dickinson, 154 Mass. 502, 28 N. E. 905; Winston v. Pittsfield, 221 Mass. 356, 108 N. E. 1038; Young v. Holyoke, 225 Mass. 140, 114 N. E. 62.
Missouri. Hume v. Brelsford, 51 Mo. App. 651.
Montana. Power v. Turner, 37 Mont. 521, 97 Ac. 950; Pelican v. Mut. Life Ins. Co., 44 Mont. 277, 119 Ac. 778.
Nebraska. Royal Neighbors v. Wallace, 5 Neb. (Unof.) 519, 99 N. W. 256; Moore v. Scott, 47 Neb. 346, 66 N. W. 441; Royal Neighbors v. Wallace, 73 Neb. 409, 102 N. W. 1020.
Ohio. Crist v. Dice, 18 O. S. 536; Belmont etc., Mining Co. v. Rogers, 10 Ohio C. C. 305, 3 Ohio Dec. 453.
Tennessee. Knights of Honor v. Dickson, 102 Tenn. 255, 52 S. W. 862.
Virginia. Wren v. Moncure, 95 Va. 369, 28 S. E. 588.
Washington. English v. Grinstead, 12 Wash. 670, 42 Ac. 121.
4 Taylor v. Ford, l&l Cal. 440, 63 Ac. 770.
5 Kenton Ins. Co. v. Wigginton, 89 Ky. 330, 7 L. R. A. 81, 12 S. W. 668.
6 Beebe v. Birkett, 109 Mich. 663, 67 N. W, 966.
7 J. H. Clark Co. v. Rice, 127 Wis. 451, 106 N. W. 231.
8 Winston v. Pittsfield, 221 Mass. 356, 108 N. E. 1038; Young v. Holyoke, 225 Mass. 140, 114 N. E. 62.
9 Winston v. Pittsfield, 221 Mass. 356, 108 N. E. 1038.
10 Seymour v. Chicago & Northwestern Ry. Co., 181 la. 218, 164 N. W. 352;