There is a growing unwillingness on the part of the courts here as in the law of warranty to allow statements to be made without liability, which are calculated to induce, and do induce, action on the part of the hearer. Where the statement is made with fraudulent intent, there is the greater reason for regarding it as a ground of liability if the natural impression given by the statement is that certain matters of fact axe true, even though the statement is couched in the form of an opinion or relates to a matter as to which certainty is impossible.43 Moreover, even if a statement is confessedly merely an opinion, and is understood to be such, nevertheless, it is an assertion of a fact; namely, that the speaker has a certain opinion, and this fact may be one upon which the other party relies, and perhaps justifiably, in entering into the bargain.44 It has been held that even a prom-
Cf. Glaspie v, Keator, 56 Fed. 203, 5 C. C. A. 474; Chase v. Boughton, 93 Mich. 285, 64 N. W. 44.
39 Coon r. AtweU, 46 N. H. 510.
40 Green p. Turner, 80 Fed. 41; Basse v. Freud, 119 Mich. 358, 78 N. W. 131.
41 Bolts D. CConner, 45 Ind. App. 178, 90 N. E. 496.
42 Stonemete v. Head, 248 Mo. 243, 154 8. W. 106.
43 The remarks of Bowen, L. J., in Smith v. Laud, etc.. Corporation, 28 Ch. D. 7, 15, are worth observing: "It is material to observe that it is often fallaciously assumed that a statement of opinion cannot involve the statement of a fact. In a case where the facts are equally well known to both' parties, what one of them says to the other is frequently nothing but an expression of opinion. The statement of such, opinion is in a sense a statement of a fact, about the conditions of a man's own mind, but only of an irrelevant fact, for it is of no consequence what the opinion is. But if the facta are not equally known to both sides, then a statement of opinion by the one who knows the facts best involves very often a statement of a material fact, for he impliedly states that he knows facts which justify his opinion." See also Stone v. Pentecost, 205 Mass. 505, 92 N. E. 1021; Noyes „. Meharry, 213 Mass. 598, 100 N. E. 1090.
44 See Spead v. Tomlinson, 73 N. H". 69, 59 Atl. 381, 68 L. R. A. 432; Sleeper v. Smith, 77 N. H. 337, 91 Atl. 866 ise amounts to a representation of fact that the promisor is of a certain state of mind.45 Still more clearly an expression of opinion is an assertion that the speaker is of a certain state of mind. The authorities recognize that if an opinion is falsely and fraudulently rendered by one professing to have expert skill, or special knowledge, it is legal fraud.46 And a few decisions hold with logical correctness that a dishonest statement of opinion is always a dishonest statement of fact.47 It may fairly be urged, therefore, that if a misstatement of opinion does not ordinarily amount to actionable fraud it cannot be because the statement is one of opinion merely, for misstatements of opinion may be actionable; but rather because it is unreasonable to place reliance on such statements unless made by one who has, or purports to have, expert knowledge or peculiar means of information not accessible to the other party; and that it is assumed that no reliance was placed on the statements unless made by such a person.
OuDette d. Theobald, 78 N. H. 647; 108 All 306, also infra, f1488.
46 McGar v. Williams, 26 Ala. 469, 62 Am. Dec 739; Jarratt v. Langston, 99 Ark. 438, 138 S. W. 1003; Edwards Barron Est. Co. v. Woodruff Co., 163 Cal. 661, 126 Pac. 351, 42 L. R. A. <N. S.) 135; Worley v. Moore, 77 Ind. 667; Coulter v. Clark, 160 Ind. 311, 66 N. E. 739; Picard v. McCormick, 11 Mich. 68; Eaton u. Winnie, 20 Mich. 156, 4 Am. Rep. 377; Host v. Bender, 25 Mich. 515; Coulter v. Minion, 139 Mich. 200; Griffin v. Farrier, 32 Minn. 474, 21 N. W. 553; Carlton v. Hulett, 49 Minn. 308, 51 N. W. 1053; Estell v. Myers, 54 Miss. 174; Champion Funding A Foundry Co. v, Heskett, 125 Mo. App. 516, 102 S. W. 1050; People v. Peckena, 153 N. Y. 576, 691, 47 N. E. 883;'Erie Iron Works p. Barber, 106 Pa. St. 125, 51 Am. Rep. 608; O'Brien v. Von Lienen (Tex. Civ. App.), 149 S. W. 723. See also King v. Doolittle, 1 Head, 77, 84.
47 Phelps v. Grady, 168 Cal. 73, 141
Pac. 926; Maodonald p. De Fremery, 168 Cal. 189, 142 Pac. 73; Sleeper v. Smith, 77 N. H. 337, 91 Atl. 866. See also Till is v. Smith Sons Lumber Co., 188 Ala. 122, 66 So. 1015. In the New Hampshire case above cited, the court quoting from one of its earlier decisions said: " When a person gives his opinion, the statement that it is his opinion includes one that he believes what he has said to be the truth; in other words, that what he has stated as his opinion is bis opinion. Every expression of opinion contains at least that one statement of fact; consequently a person can state what he knows to be false, for the purpose of inducing another to change his position, when he pretends to express his opinion as to any matter, as well as when he pretends to state facta in relation to it. In such a case the falsity of the statement consists in stating something as his opinion which is not his opinion." Spead v. Tomlmaon, 73 N. H. 46, 62, 59 Atl. 376, 381, 68 L. R. A. 432.