Sec 261

A misrepresentation is to be distinguished from a puff. Few articles are sold in the market without preliminary puff's, express or implied; but these puffs are regarded on all sides as mere vague recommendations, not to be contractually binding.1 Commendatory expressions, therefore, such as are usual in public sales, do not vitiate the contract when they refer to matters open to inquiry on all sides, and are part of the usual phraseology in which offers to sell are couched.2 And mere commendation or praise, no matter how extravagant, is not to be regarded as imposing liability.3

Misrepresentations to be distinguished from "puffs."

R., 34 Miss. 245; Anderson v. Hill, 12 Sm. & M. 679; Foggart v. Blackweller, 4 Ired. 238; Ricks v. Dillahunty, 8 Port. 134; Graffenstein v. Eppstein, 23 Kan. 443. That an affirmation of value is not a warranty, see supra, sec 219 et seq.; and see to same effect, Wetherill v. Neilson, 20 Penn. St. 448; Weimer v. Clement, 37 Penn. St. 147; Whitaker v. Eastwick, 75 Penn. St. 229.

1 1 Story, Eq. Jur. sec 198; Pilmore v. Hood, 5 Bing. N. C. 97; Hill v. Gray, 1 Stark. 352; Pike v. Fay, 101 Mass. 134; Pickard v. McCormick, 11 Mich. 68; Kost v. Bender, 25 Mich. 515; Birdsey v. Butterfield, 34 Wis. 52; and illustrations given in sec 260.

2 Long v. Woodman, 58 Me. 52; Bishop v. Small, 63 Me. 12; Holbrook v. Conner, 60 Me. 578; Medbury v. Watson, 6 Met. 246; Hammer v. Cooper, 8 Allen, 334; Manning v. Albee, 11 Allen, 520; Cooper v. Lover-ing, 106 Mass. 79; Noetling v. Wright, 72 111. 390.

3 See Bigelow on Fraud, 19, citing Elkins v. Tresham, 1 Lev. 102; Dobell v. Stevens, 3 B. & C. 623; Bowring v. Stevens, 2 C. & P. 337; Lawton v. Kittredge, 30 N. H. 500; Hammatt v. Emerson, 27 Me. 308; Bacon v Frisbie. 15 Hun, 26; Van Epps v. Harrison, 5 Hill, 63; McAleer v. Horsey, 35 Md. 439; Morehead v. Eades, 3 Bush, 121; Kost v. Bender, 25 Mich. 525; Nowlin v. Snow, 40 Mich. 699; though see Tuck v. Downing, 76 111. 71. As sustaining text, see Lindsay Co. v. Hurd, L. R. 5 P. C. 221; Morison v. Thompson, L. R. 9 Q. B. 480; Medbury v. Watson, 6 Met. 259.

4 Dimmock v. Hallett, L. R. 2 Ch. 21; McClellan v. Scott, 24 Wis. 81.

5 Haygarth v. Wearing, L. R. 12 Eq. 327; Simar v. Canady, 53 N. Y. 298; Stover v. Wood, 11 C. E. Green, 417; Neil v. Cummings, 75 111. 170; Davis v. Jackson, 22 Ind. 233; Bryan v. Hitchcock, 43 Mo. 527; Gifford v. Carvill, 29 Cal. 589; Cruess v. Fessler, 39 Cal. 336, cited Bigelow on Fraud, 18; and see further to same effect, Sandford v. Handy, 23 Wend. 269; Kenner v. Harding, 85 111. 264.

Sec 262

A false representation of another's solvency, when it is so made as to secure credit, exposes the party making it to an action for deceit, and opens any contract based on it to rescission on application of the injured party.4 The same may be said of averments that a party is possessed of certain specified assets.5 But in such cases, the averment must go to some particular fact. Liability is not imposed by the mere statement of a party that he would be willing to trust the person whose solvency is at issue.6 But although it has been held in Vermont, that a party's false statement of his own solvency does not sustain an action against him for deceit,7 the prevalent opinion is, that such a statement is not only actionable, but is ground for rescinding a contract which it induces.8

False representations of solvency bind.

1 R. v. Ridgway, 3 F. & F. 838; State v. Estes, 46 Me. 150; People v. Crissie,4 Denio, 525; French v. Griffin, 3 C. E. Green, 279; Hunter v. McLaughlin, 43 Ind. 38.

2 Dimmock v. Hallett, L. R. 2 Ch. 27 (where it was held that "fertile and improvable" was a mere opinion); Trower v. Newcombe, 3 Mer. 704; Tuck v. Downing, 76 111. 71; Barlow v. Wiley, 3 A. K. Mar. 459; Schramm v. O'Conner, 98 111. 539. As to value, see supra, sec 260; as to descriptive terms, see infra, sec 559, 903.

3 Bispham's Eq. sec 215; Irving v. Thomas, 18 Me. 418; Savage v. Jackson, 19 Ga. 305; Halls v. Thompson, 1 Sm. & M. 443.

4 Pasley v. Freeman, 3 T. R. 51; R. v. Henderson, Car. & Marsh. 328; People v. Kendall, 25 Wend. 399.

5 R. v. Cooper, L. R. 2 Q. B. D. 510; Com. v. Burdick, 2 Barr, 163; see Weeks v. Burton, 7 Vt. 67; Edwards v. Owen, 15 Ohio, 500; Foxworth v. Bullock, 44 Miss. 457.

6 Gainsford v. Blatchford, 7 Price, 549; Glover v. Townsend, 30 Ga. 90.

7 Dyer v. Tilton, 23 Vt. 313; see State v. Sumner, 10 Vt. 587.

8 Wh. Cr. L. 8th ed. sec 1135 et seq.; Bigelow on Fraud, 25; R. v. Henderson, Car. & Marsh. 328; R. v. Bull, 13 Cox, Cr. C. 608; Stewart v. Emerson, 52 N. H. 301; Com. v. Drew, 19 Pick. 179; Kidney v. Stoddard, 7 Met. 252; Dow v. Sanborn, 3 Allen, 181: Thompson v. Rose, 16 Conn. 71; People v. Kendall, 25 Wend. 399; Ash v. Putnam, 1 Hill, 302; State v. Simmons, 58 Ind. 98.

Insolvency, with an intention not to pay, constitutes, as we have already seen, a false pretence which will avoid a sale.1 But mere insolvency is not a fact which a party, even if he is conscious of it, is bound to state, unless it is accompanied with an intention not to pay.2