1 James v. Morgan, 1 Lev. 111. See also Smith on Contracts, p. 99, and the remarks on the case of Thornborow v. Whitacre, 2 Ld. Raym. 1165.
2 Corbett v. Brown, 8 Bing. 35; 1 Moo. & S. 86; 5 C. & P. 365.
3 Trower v. Newcome, 3 Meriv. 704; Scott v. Hanson, 1 Sim. 13; Fen-ton v. Browne, 14 Ves. 144; 2 Kent, Comm. 484-487, 4th ed.; Davis v. Meeker, 5 Johns. 354; Harvey v. Young, Yelv. 21; 1 Story, Eq. Jur. § 199; Taylor v. Fleet, 1 Barb. 474.
4 Vernon v. Keys, 12 East, 637; Hazard v. Irwin, 18 Pick. 95; Attwood sales of personal property, the rule of caveat emptor generally obtains, by which every purchaser, who makes a naked contract of sale without either an express or implied warranty, is understood to depend solely on his own judgment; since, if he do not choose to rely on his own skill and judgment, he may require a warranty, or so frame his contract by embodying any representation therein as to render the seller responsible.1 Yet, if the seller make material misrepresentations, on faith of which the purchase is made, the law will not only not enforce the sale, in case the seller was guilty of wilful falsehood, but will create an implied warranty on his part that such statement is true, although it be neither embodied in the contract, nor made with fraudulent intent, provided it be in respect to a matter stated as a fact, of which the other has not equal means of knowledge with him.2 Thus, if the seller be a producer or manufacturer, and state that goods are of a certain quality, the law imports a warranty that such representation is true, because, from his position, he has, or necessarily ought to have, more knowledge in respect of them than the buyer.3 But if a purchaser, choosing to judge for himself, do not avail himself of the knowledge or means of knowledge open to him or his agents, he cannot claim to set the contract aside, on the ground that statements false in fact were made to him; for the rule of v. Small, 6 CI. & Finn. 232; Hough v. Richardson, 3 Story, 690; Smout v. Ubery, 10 M. & W. 1; Haycraft v. Creasy, 2 East, 92. In the recent case of The National Exchange Co. v. Drew, 2 Macq. 103 (1855), it was held by the House of Lords that when a tottering joint-stock company, with a view to raise its shares in the market, represented the concern as most prosperous, and offered money to two of their shareholders to buy additional shares, saying, "You shall not be called upon for any further contribution till the stock can be sold at a profit;" and the shares became worthless, it was held that the company could not even recover the money so advanced to the shareholders, and Cornfoot's Case was elaborately explained.
1 Ormrod v. Huth, 14 M. & W. 651.
2 Schneider v. Heath, 3 Camp. 506; Baglehole v. Walters, 3 Camp. 154; Mellish v. Motteux, Peake, 115; Bywater v. Richardson, 1 Ad. & El. 508; 2 Kent, Comm. 490; Jones v. Bright, 5 Bing. 533: Brown v. Edgington, 2 Man. & Grang. 290; Smith v. Babcock, 2 Woodb. & M. 246.
3 Ibid.; Jones v. Bright, 5 Bing. 533; Brown v. Edgington, 2 Man. & Grang. 290.
1 Pasley v. Freeman, 3 T. It. 57; Attwood v. Small, 6 CI. & Finn. 232; Hough v. Richardson, 3 Story, 690; Baglehole v. Walters, 3 Camp. 154; Schneider v. Heath, 3 Camp. 506; Bluett v. Osborne, 1 Stark. 384; Mason v. Crosby, 1 Woodb. & M. 342.
2 Ibid.; Vernon v. Keys, 12 East, 637; Attwood 9. Small, 6 CI. & Finn. 232; Taylor v. Fleet, 1 Barb. 474; Smith v. Babcock, 2 Woodb. & M. 296; Tuthill v. Babcock, ib. 298; Mason v. Crosby, 1 Woodb. & M. 342; Schneider v. Heath, 3 Camp. 506.
3 Warner v. Daniels, 1 Woodb. & M. 90; Taylor v. Fleet, 1 Barb. 473; Collins v. Denison, 12 Met. 549; Tuthill v. Babcock, 2 Woodb. & M. 298.
4 David v. Park, 103 Mass. 501 (1870). And see Watson v. Atwood, 25 Conn. 313; Manning v. Albee, 11 Allen, 520; 14 Allen, 7; Brown v. Castles, 11 Cush. 348.
5 1 Story, Eq. Jur. § 197; 1 Marshall on Ins. B. 1, ch. 10, § 2, p. 473; 1 Domat, B. 1, tit. 2, § 11, art. 3, 11, 12. See also 2 Kent, Comm. 484, 485; Taylor v. Ashton, 11 M. & W. 401; Cornfoot v. Fowke, 6 M. & W. 358. See ante, § 632, note; Ormrod v. Huth, 14 M. & W. 651; Hazard
§ 637. But where a statement is not made as a fact, but only as an opinion, the rule is quite different. Thus, a false representation as to a mere matter of opinion - as the quantity of wood on the land to be conveyed - does not avoid the contract.1 And representations of a promissory character as to the thing sold, relating to what it will be in the future, or so far as they are expressions of opinion, do not avoid a sale, unless known to be false, or made with intent to deceive.2 Ordinarily, a naked statement of opinion is not a representation on which a buyer is legally entitled to rely,3 unless perhaps in some special cases, where peculiar confidence or trust is created between the parties. The ground of this rule is probably the impracticability of attempting to discover by means of the rules of law the real opinion of the party making the representation, and also, because a mere expression of opinion does not alter facts, though it may bias the judgment. Mere expressions of opinion are not, therefore, considered so tangible a fraud as to form a ground of avoidance of a contract, even though they be falsely stated.4 Thus, the common language of puffing and commendation, and the statements made at auction sales, where the article sold is equally open to the observation of both parties, though false in fact, and bad in morals, are not treated as frauds. But it would be otherwise if the character and quality of the commodity be disguised or concealed, so as to deceive and impose upon the buyer; or if the value be enhanced by improper means, as if puffers and by-bidders be employed at auction sales.6 A fortiori, if an honest opinion be given as to v. Irwin, 18 Pick. 105; Doggett v. Emerson, 3 Story, 733; 1 Woodb. & M. 205.
1 Longshore v. Jack, 30 Iowa, 298 (1870).