Sec 259

The fraud must go to a specific fact, as distinguished from a general opinion.3 It is not a fraudulent misstatement, therefore, which avoids a contract, to say untruly that a particular article is a very good one of its class; though it is a misstatement to say that the article belongs to a class when it does not. To say untruly, for instance, of a particular horse, that he is a good horse and serviceable in the vendor's opinion, does not avoid a sale of the horse; but it would be otherwise if the horse was declared to be a particular horse, well known in the market, which he is not.4 To say of a flock, "this is a first-rate flock," cannot, no matter how false, be regarded as a fraudulent false statement, though it would be otherwise if certain lone v. Hull, 47 Md. 112; Talcott v. Henderson, 31 Oh. St. 162. That suppression of the party's insolvency is not a deceit, see supra, sec 249.

False opinion of a thing not a fraud that avoids.

1 Supra, sec 249; infra, sec 262; Benj. on Sales, 3d Am. ed. sec 441; Irving v. Motley, 7 Bing. 543; Whitaker ex parte, L. R. 10 Ch. 446; Biggs v. Barry, 2 Curt. 259; Hale v. Ins. Co., 12 Fed. Rep. 359; Hodgeden v. Hubbard, 18 Vt. 504; Reddington v. .Roberts, 25 Vt. 686; Rowley v. Bigelow, 12 Pick. 307; Morrill v. Blackman, 42 Conn. 324; Andrew v. Dieterick, 14 Wend. 31; Hennequin v. Naylor, 24 N. Y. 139; Rodman v. Thalheimer, 75 Penn. St. 232; Powell v. Bradlee, 9 Gill & J. 220; Talcott v. Henderson, 31 Oh. St. 162; Patton v. Campbell, 70 111. 72; Ship-man v. Seymour, 40 Mich. 274;' Gar-butt v. Bank, 22 Wis. 384.

2 Morton, J.,Morse v.Shaw, 124 Mass. 59; see notes to Chandelor v. Lopus, 1 Smith's L. C. 7th Am. ed. 299.

3 Supra, sec 215; Citizens' Bank p. Bank of New Orleans, L. R. 6 H. L. 352; Power v. Barham, 4 Ad. & E. 476; Jendwine v. Slade, 2 Esp. 573; Evans v. Collins, 5 Q. B. 805; Sawyer v. Prickett, 19 Wal. 146; Stebbins v. Eddy, 4 Mason, 414; Foster v. Caldwell, 18 Vt. 176; Hazard v. Irwin, 18 Pick. 105; Watts v. Cummins, 59 Penn. St. 84; Clark v. Everhart, 63 Penn. St. 347; Savage v. Jackson, 19 Ga. 305; Stow v. Boseman, 29 Ala. 397; Longshore v. Jack, 30 Iowa, 298; Barlow v. Wiley, 3 A. K. Marsh. 457; Townsend v. Cowles, 31 Ala. 428; Herring v. Skaggs, 62 Ala. 180; Broughton v. Winn, 60 Ga. 486; Reel v. Ewing, 4 Mo. Ap. 569. This topic is discussed in its criminal relations in Wh. Cr. L. 8th ed. sec 1154 et seq., and see supra, sec 215.

4 State v. Mills, 17 Me. 211; see Harvey v. Young, 1 Yelv. 21; Sieve-king v. Litzler, 31 Ind. 17.

1 People v. Crissie, 4 Denio, 525; see Lindsay Petroleum Co. v. Hurd, L. R.

5 P. C 221; Moens v. Heyworth, 10 M.

&W. 147; supra, sec 215 et seq.

2 Bispham's Eq. sec 207, citing Sieve-king v. Litzler, 31 Ind. 17; Coon v. Atwell, 46 N. H. 510; Reid v. Flippen, 47 Ga. 273; Allin v. Millison, 72 111. 201; supra, sec 215 et seq.

3 Halls v. Thompson, 1 Sm. & M. 443. That expressions of opinion are not to be regarded as misrepresentations, see supra, sec 215: Ferson v. Sanger, 1 Wood. & M. 146; Buschmann v. Codd, 52 Md. 202. - " Ordinarily,"says Judge Story, "matters of opinion between parties dealing upon equal terms, though falsely stated, are not relieved against; because they are not presumed to mislead, or influence the other party, when each has equal means of information." Story's Eq. Jur. 12th ed. sec 197.

4Upton v. Englehardt, 3 Dill. 343; Clemr. R. R., 9 Ind. 488; Smith v. Calvert, 44 Ind. 242; Mullen v. Park, 64 Ind. 202; Clodfelter v. Hulett, 72 Ind. 137, and cases cited supra, sec 198.

5 Supra, sec 199, 201; Edwards v. Brown, 1 C. & J. 312; Hirschfield v. R. R., L. R. 2Q. B. D. 1.

6 Herring v. Skaggs, 62 Ala. 180.

7 Supra, sec 190; infra, sec 601, 898; Irving v. Thomas, 18 Me. 418; Whitney v. Allaire, 1 Comst. 305; Clark v. Baird, 9 N. Y. 183; Wiswall v. Hall, 3 Paige, 313; Hill v. Brower, 76 N. C. 124; Kelly v. Allen, 34 Ala. 663; Cox v. Reynolds, 7 Ind. 257; Foley v. Cow-gill, 5 Blackf. 18; Shaeffer v. Sleade, 7 Blackf. 178.

sum than was bargained for can claim an abatement pro tanto if sued for the price.1 A vendor is also thus liable for false statements as to the capacity of a mill,2 as to the foundation of a building,3 as to the amount of crops raised on a farm,4 and as to the age and essential characteristics of a horse.5 - What would be matter of opinion when spoken by a non-specialist, may be a matter of fact when spoken by a specialist.6 A vague statement of the value of a picture, for instance, by a mere dealer, would not bind; but it would be otherwise with regard to a statement by one professing to be a connoisseur, giving an official valuation.7 - Hence, statements made by the president of a railroad corporation, to induce a party to buy stock in the corporation, that the corporation was able to lay its track and provide rolling stock, and pay all bills contracted, and that its stock was not for sale, and could not be bought anywhere but of him, are to be regarded as representations of fact, and not as expressions of opinion.8 - As matters of opinion, under the present head, are to be classed statements as to the utility of particular inventions for which patent rights are offered for sale.9 It is otherwise as to statements by vendors as to the practical characteristics of patent rights.10 - Unless there be a fiduciary relation between vendor and purchaser, or unless the party speaking speaks, as we have seen, as a specialist, opinions of value,11 no matter how exaggerated, do not impose liability, so long as these opinions consist of estimates, and do not involve warranties or represen-ations of specific facts.12 Liability, however, attaches, when

1 Infra, sec 899 et seq.

2 Sieveking v. Litzler, 31 Ind. 17; Faribault v. Sater, 13 Minn. 223.

3 lbid.

4 Martin v. Jordan, 60 Me. 531; Coon v. Atwell, 46 N. H. 510; Mooney v. Miller, 102 Mass. 217.

5 R. v. Keighley, D. & B. 145; Reid v. Flippen, 47 Ga. 273.

6 Haygarth v. Wearing, L. R. 12 Eq. 320; Hubbell v. Meigs, 50 N. Y. 480; Shaeffer v. Sleade, 7 Blackf. 178.

7 Story's Eq. Jur. sec 198, citing Hill v. Gray, 1 Stark. 352; Martin v. Jordan, 60 Me. 531; Wakeman v. Dalley, 51 N. Y. 27. See sec 260 for other cases.

8 Teague v. Irwin, 127 Mass. 217; see Grim p. Byrd, 32 Grat. 293, and see cases cited to sec 260.

9 Hunter v. McLaughlin, 43 Ind. 38. 10 Bigler v. Flickinger, 56 Penn. St.

279; Rose v. Hurley, 39 Ind. 77.

11 Supra, sec 254.

12 See note to Chandelor v. Lopus, 1 Smith's Lead. Cas. 7th Am. ed. 299 et seq.; Loini v. Tucker, 4 C. & P. 15; Hill v. Gray, 1 Stark. 352; Willard p. Randall, 65 Me. 81; Manning v. Albee, the statement of opinion is by a person occupying a fiduciary position, or by one appealed to as an umpire, or by one undertaking to make inquiries for the party deceived, or as a specialist.1.