" From the situation of the parties and of the country, and from the form of the entry, it is reasonable to presume that this apology is true in point of fact; but the court does not conceive that the fact will amount to a legal justification of the person who has made the misrepresentation. He who sells property on a description given by himself, is bound to make good that description; and if it be untrue in a material point, although the variance be occasioned by a mistake, he must still remain liable for that variance." In Russell v. Clark, 7 Cranch, 69, where a general letter of recommendation was written, it is held that if a representation concerning the credit of another be honestly made, its falsity does not render the person making it liable to an action; and the ground upon which the decision is put is that such representations are necessarily matters of opinion, given as such and received as such. The same doctrine is held in Lord v. Goddard, 13 How. 198, 210, in a similar case, where a commercial letter of recommendation was written, on faith of which credit was given and a loss sustained. In Hammatt v. Emerson, 27 Me. 326, it was held, that in a contract of sale, a misrepresentation must have been known to be false to avoid the contract, and that fraudulent intent must appear, but the court say: " When one has of mutual assent of the parties.1 For if a gross misrepresentation be made as to a material fact, it matters not whether it be treated as a constructive fraud, or as a mere mistake, the right of the deceived party to avoid it is the same.2 A quesmade a representation positively, or professing to speak as of his own knowledge, without having any knowledge on the subject, the intentional falsehood is disclosed, and the intention to deceive is also inferred." A similar rule was laid down in McDonald v. Trafton, 15 Me. 225; and Inger-soll v. Barker, 21 Me. 474. See also Allen v. Addington, 7 Wend. 1; Young v. Covell, 8 Johns. 25; Weeks v. Burton, 7 Vt. 67; Ewins v. Calhoun, ib. 79; Lord v. Colley, 6 N. H. 99. See also Boyd v. Browne, 6 Barr, 316; Hopper v. Sisk, Smith (Ind.), 102. And see, to the point that where material facts are falsely stated by a person as of his knowledge and not of his opinion only, he is liable therefor, Hazard v. Irwin, 18 Pick. 96; Stone v. Denny, 4 Met. 160; Doggett v. Emerson, 3 Story, 732; 1 Woodb. & M. 205; Lobdell v. Baker, 1 Met. 193; 3 Met. 469; Gough v. St. John, 16 Wend. 646; Thomas v. McCann, 4 B. Monr. 601; Munroe v. Pritchett, 16 Ala. 785; Joice v. Taylor, 6 Gill & Johns. 54; M'Cormick v. Malin, 5 Blackf. 509; Lockridge v. Foster, 4 Scam. 570.
1 Flight v. Booth, 1 Bing. N. C. 377; Farnam v. Brooks, 9 Pick. 233; M'Ferran v. Taylor, 3 Cranch, 270; Daniel v. Mitchell, 1 Story, 193; Hough v. Richardson, 3 Story, 691; Warner v. Daniels, 1 Woodb. & M. 91.
2 Doggett v. Emerson, 3 Story, 733. This was a bill in equity to set aside a purchase of land, made upon gross misrepresentation as to the kind and quality of timber contained thereon. Mr. Justice Story said: "Upon the first question it does not appear to me that there is any reasonable ground to doubt that the purchase of the plaintiff was made upon an entire credit given to the representations of Williams of the quantity and quality of the timber on the township. The plaintiff resided in Boston, and, confessedly, had no knowledge of timber lands, and had never seen the township. He must, therefore, have placed implicit reliance upon the statements of Williams. Now it is quite immaterial, in a case of this sort, whether Williams was himself at once the deceiver and the deceived. The question is not whether he acted basely and falsely, but whether the plaintiff purchased upon the faith of the truth of his representations. If the plaintiff did so purchase, then, upon the settled principles of courts of equity, the bargain ought to be set aside as founded upon gross misrepresentation and gross mistake, going to its very essence and objects. The whole doctrine turns upon this, that he who misleads the confidence of another by false statements in the substance of a purchase shall be the sufferer, and not his victim." See also Smith v. Babcock, 2 Woodb. & M. 246; M'Ferran v. Taylor, 3 Cranch, 270; Buford v. Caldwell, 3 Mo. 335; Munroe v. Pritchett, 16 Ala. 785; Collins v. Denison, 12 Met. 549; Wallace v. Stone, 38 Vt. 607 (1866).
tion of this kind came before the House of Lords in a very recent case.1 The appellants having been induced to take shares in a banking company through a report of the directors representing the company to be in a flourishing condition, which proved to be false, sought to escape the consequences of their contract by reason of the alleged misrepresentation. But they were not allowed to do so. The Lord Chancellor said: "As regards that case of misrepresentation, it is unnecessary to consider how far the law would be applicable to a case of this description; because, in point of fact, we find nothing whatever upon the evidence before us to satisfy us that any misrepresentation was made to their knowledge, or with such a degree of carelessness and negligence on their part, ... as to amount to a necessary implication of knowledge on their part of the representations being false. All that we have before us is this, that they did make a very flourishing report of the state of the accounts. It is said, and it is admitted, that there were certain debts which were assumed, before the representation was made, to be good, and which now have turned out to be bad. Not one word is told us, nor any suggestion made, as to the directors having any knowledge whatever of the debts which were reckoned to be good at the time when the representations were made, being bad." But in another recent case, before the House of Lords,2 Lord Cairns says: "I apprehend it to be the rule of law, that if persons take upon themselves to make assertions as to which they are ignorant whether they are true or untrue, they must, in a civil point of view, be held as responsible as if they had asserted that which they knew to be untrue. Upon that part of the case, my lords, I apprehend that there is no doubt." 3