Sec 258

If there be an intention at the time of a purchase not to pay for the thing purchased (which is to be gathered from all the facts of the case), this is a fraud which entitles the vendor to avoid the contract and exposes the party defrauding to an action for deceit.1 But the intention must be never to pay. If it be not to pay at a time designated, but to pay ultimately, the misrepresentation, unless time be of the essence of the contract, does not avoid it.2 Even a knowledge by a purchaser that at the sheep in the flock were falsely declared to be free from disease.1 So to say untruly that a rope, offered for sale, is good, and will bear a heavy weight, is not a false representation, but it is otherwise with a statement that the rope has sustained a particular test, or is of a particular quality.2 And an untrue statement of a fact as merely " probable," is not a false representation, when probability is not the question at issue.3 - To say of a document, also, that it has a particular legal meaning, is a matter of opinion, open to both sides to express (neither pretending to be an expert), the expression of which opinion does not ordinarily impose liability on a person not a specialist;4hough it would be otherwise as to an assertion that a particular line of facts falls within a particular rule.5 But when any particular fact is so material that an agreement concerning it is necessary to a consent by the parties to one and the same thing, then any deliberate false statement as to such fact, though in the shape of an opinion, avoids the contract, and renders the party making such false statement liable in an action for deceit.6 This is the case with regard to a false statement concerning quantity, when this is material;7 though, as will hereafter be seen, a party who receives a less Intention not to pay may be a false pretence.

1 Benj. on Sales, 3d Am. ed. sec 440; Wilson v. Finch-Hatton, L. R.2 Eq. D. 336; Ferguson v. Carrington, 9 B. & C. 59; Noble v. Adams, 7 Taunt. 59; Load v. Green, 15 M. & W. 216; Ham-mersley v. DeBiel, 12 Cl. & F. 45; Clough v. R. R., L. R. 7 Exch. 26; Conyers v. Ennis, 2 Mason, 236; Parker v. Byrnes, 1 Lowell, 539; Donaldson v. Farwell, 93 U. S. 631; Stewart v. Emerson, 52 N. H. 301; Hovey v. Grant, 52 N. H. 569; Dow v. Sanborn, 3 Allen, 181; Kimball v. Ętna Co., 9 Allen, 540; Wiggin v. Day, 9 Gray, 97; Jordan v. Osgood, 109 Mass. 457; Ash v. Putnam, 1 Hill, 302; Hall v. Naylor, 6 Duer, 71; Byrd v. Halls, 2 Keyes, 647; Hennequin v. Naylor, 24 N. Y. 139; Wright v. Brown, 67 N. Y. 1; Rogers v. Salmon, 8 Paige, 559; Mackinley v. Macgregor, 3 Whart. 369; Rodman v. Thalheimer, 75 Penn. St. 232; Powell v. Bradlee, 9 Gill & J. 220: Peters v. Hilles, 48 Md. 506; Shipman p. Seymour, 40 Mich. 274; see, however, contra, Smith v. Smith, 21 Penn. St. 367; Backentoss v. Speicher, 31 Penn. St. 324; Bidault v. Wales, 19 Mo. 36; Bidault v. Wales, 20 Mo. 546; Bell v. Ellis, 33 Cal. 620. That a concealment of an intention not to pay is a fraud, see Stewart v.-Emerson, 52 N. H. 301.

2 Mitchelly. Worden, 20 Barb. 253; Bidault v. Wales, 20 Mo. 546. It is said in Pennsylvania that mere intention not to pay, without some artifice to get possession, does not avoid a sale when there has been a delivery of the property. Smith v. Smith, 21 Penn. St. 367; Backentoss v. Speicher, 31 Penn. St. 324; Pottinger v. Hecksher, 2 Grant, 309; but see Hoffman v. Strohecket, 7 Watts, 86. And a mere promise without a definitive intention as to paying is not a fraud which avoids. Buflington v. Garrish, 15 Mass. 158; Griffin v. Chubb, 7 Tex. 613. In Whitaker ex parte, L. R. 10 Ch. 446, a trader bought goods at auction on credit, obtaining possession of them, without disclosing the fact that he was then under proceedings in the bankrupt court, having committed an act of bankruptcy. It was held that this by itself did not avoid the purchase, and that the goods vested in the bankrupt assignee. It was, however, further said that the buyer "must be taken to have made an implied representation that he intended to pay for the goods, and if it were clearly made out that at the time he did not intend to pay for them, a case of fraudulent misrepresentation would be shown." Leake, 2d ed. 354; see supra, 249. As sustaining the text, see further Stewart v. Emerson, 52 N. H. 301; Kline v. Baker, 99 Mass. 253; Stubbs v. Johnson, 127 Mass. 219; Thompson v. Rose, 16 Conn. 71; Barnard v. Campbell, 65 Barb. 286; Deltime he was insolvent, without any reasonable expectation of paying, does not, by itself, avoid the contract or expose the purchaser to an action for deceit.1 It is for the jury to determine"whether the representations (of an insolvent purchaser) were intended and understood as statements of facts, or mere expressions of opinion or judgment."2.