2 Pike v. Fay, 101 Mass. 134 (1869).
3 Hazard v. Irwin, 18 Pick. 105; Evans v. Collins, 5 Q. B. 804, 820; Stebbins v. Eddy, 4 Mason, 414; Taylor v. Ashton, 11 M. & W. 401; Moens v. Heyworth, 10 M. & W. 147; Trower v. Newcombe, 3 Meriv. 704; Scott v. Hanson, 1 Sim. 13; Fenton v. Browne, 14 Ves. 144; Davis v. Meeker, 5 Johns. 354.
5 2 Kent, Comm. 482, 483,484, 4th ed.; Turner v. Harvey, Jacob, 178; 1 Story, Eq. Jur. § 201; Dig. Lib. 18, tit. 1, 1. 43; Bramley v. Alt, 3 Ves. €24; Smith v. Clarke, 12 Ves. 483; Twining v. Morrice, 2 Bro. C. C. 330; the value of property sold, it will not afford a good ground to invalidate a contract, however ill-founded it may be.1 Yet, where a representation is made going to the essence of a contract, the party making it should be careful to state it as an opinion, and not as a fact of which he has knowledge, or he may be liable thereon. The question whether a statement was intended to be given as an opinion, and was so received, is, however, one for a jury to determine, upon the peculiar circumstances of the case.2 But whenever a belief is asserted as in a fact which is material or essential, and which the person asserting knows to be false, and the statement is made with an intention to mislead, it is fraudulent, and affords a ground of relief. Thus, where the vendor of a note asserted that he believed the maker to be responsible, when he knew he was not, and the vendee acted upon his representation of belief, it was held to be equivalent to an assertion that the maker was responsible.3
§ 638. But there may be cases when especial confidence is reposed in the opinion of a party who is an expert, and who knows that his judgment is relied upon, wherein a false statement of opinion, artfully made, for the purpose of misleading the other party, might furnish sufficient ground to avoid a contract made on faith thereof.4 Thus, if a man of skill and judgment in pictures, knowing that his judgment was depended upon, should represent a particular painting to be the work of one of the old masters, or should even falsely state that such was his opinion, with an intent to deceive the purchaser, and the latter should be induced by such statement to purchase the picture, the sale would probably be held to be void.1 But these cases are peculiar in their circumstances, and form an exception to the general rule.
1 Fonbl. Eq. B. 1, ch. 4, § 4, note c; Pickerings. Dowson, 4 Taunt. 785; Marquis of Townshend v. Stangroom, 6 Ves. 338; Bexwell v. Christie, 1 Cowp. 395. See also Ward v. Center, 3 Johns. 271; Upton v. Vail, 6 Johns. 181; Russell v. Clark, 7 Cranch, 92; Adams v. Paige, 7 Pick. 542; Pierce v. Jackson, 6 Mass. 242; Moore v. Tracy, 7 Wend. 229; Wbittier v. Smith, 11 Mass. 211. See post, § 667.
1 1 Story, Eq. Jur. § 197; Hepburn v. Dunlop, 1 Wheat. 189; 2 Kent, Comm. 485; Vernon v. Keys, 12 East, 632; Harvey v. Young, Yelv. 21; Jendwine v. Slade, 2 Esp. 572.
2 Lomi v. Tucker, 4 C. & P. 15; Power v. Barham, 4 Ad. & El. 473; Hill v. Gray, 1 Stark. 434; De Sewhanberg v. Buchanan, 5 C. & P. 343; Keates v. Cadogan, 10 C. B. 592; 2 Eng. Law & Eq. 318; Hazard v. Irwin, 18 Pick. 95; Foster v. Caldwell, 18 Vt. 176.
3 Foster v. Swasey, 2 Woodb. & M. 217. See also Stebbins v. Eddy, 4 Mason, 414.
4 1 Story, Eq. Jur. § 198; 1 Pothier on Oblig. n. 17 to 20, and note a; Pothier de Vente, n. 233 to 241; Hill v. Gray, 1 Stark. 434, explained in Keates v. Cadogan, 10 C. B. 591; 2 Eng. Law & Eq. 318; 2 Kent, Comm. 482, 4th ed.; Pilmore v. Hood, 5 Bing. N. C. 97; Pidcock v. Bishop, 3 B. & C. 605; Baglehole v. Walters, 3 Camp. 154; Schneider v. Heath, 3 Camp.
§ 639. Where a misrepresentation is embodied in a contract, the general rule is, that it will avoid the contract, if it be in a vital point. But this rule is subject to the same modification as to misstatements of matter of fact, and as to matters of opinion. If the misstatement be in respect to a matter purely of opinion, it will not avoid the contract, and this question is for the decision of the jury.2 Thus, where words of description are contained in a bill of parcels, or memorandum of sale, and the subject-matter does not answer to them, if they be stated expressly as opinion,3 or if they relate to a matter in respect to which, from its nature, only an opinion can be formed, their mere falsity will not vitiate the contract.4 Thus, where a bill of parcels described certain pictures which were sold, to be "Four pictures, views in Venice, Canaletto," it was held, that it was properly left to the jury to say whether this was intended as an expression of opinion or not; since upon such fact depended the liability of the seller.5 But if the descrip-
506; Pickering v. Dowson, 4 Taunt. 779, 784; Cornfoot v. Fowke, 6 M. & W. 359, 383; Wright v. Crookes, 1 Scott, N. R. 685; Laidlaw v. Organ, 2 Wheat. 178, 195; Mellish v. Motteux, Peake, 115; Arnot v. Biscoe, 1 Ves. 96; 2 Kent, Comm. 482-484 (4th ed.), and note.
1 2 Kent, Comm. 482, 4th ed.; 1 Story, Eq. Jur. § 198; Hill v. Gray, 1 Stark. 434; Pilmore v. Hood, 5 Bing. N. C. 97.
2 Power v. Barham, 4 Ad. & El. 476; Jendwine v. Slade, 2 Esp. 573.
3 Dunlop v. Waugh, Peake, 123.
4 See Story on Sales, § 358, and cases cited.
5 Power v. Barham, 4 Ad. & El. 476; 6 Nev. & Man. 62; s. c. 7 C. & P. 356. In Jendwine v. Slade, 2 Esp. 573, Lord Kenyon said: "It was impossible to make this the case of a warranty; the pictures were the work of artists some centuries back, and there being no way of tracing the picture itself, it could only be matter of opinion whether the picture in question was the work of the artist whose name it bore, or not. What, then, does the catalogue import? That, in the opinion of the seller, the picture is the tion be in respect to a matter of fact, relating to the identity or quality of the subject of sale, which is susceptible of accurate knowledge, and especially if it be in respect to a fact which the seller is bound to know, its falsity would vitiate the contract, if it were material; for in such a case it would be considered as an express warranty.1 Within this last branch of the rule, nearly all the cases of sales come; and where a fact is stated expressly in a contract, it must be clearly shown to be given and received as an opinion, or it will invalidate the contract.2 Thus, where a sale note was given in these words, work of the artist whose name he has affixed to it. The action in its present shape must go on the ground of some fraud in the sale. But if the seller only represents what he himself believes, he can be guilty of no fraud. The catalogue of the pictures in question leaves the determination to the judgment of the buyer, who is to exercise that judgment in the purchase." In Power v. Barham, Lord Denman, in commenting on the case of Jendwine v. Slade, said: "I think that the case was correctly left to the jury. We must take the learned judge to have stated to them that the language of Lord Kenyon in Jendwine v. Slade, was merely the intimation of his opinion upon such a contract as was then before him. It may be true that, in the case of very old pictures, a person can only express an opinion as to their genuineness; and that is laid down by Lord Kenyon in the case referred to. But the case here is, that pictures are sold with a bill of parcels, containing the words, ' Four pictures, views in Venice, Canaletto.' Now, words like these must derive their explanation from the ordinary way in which such matters are transacted. It was, therefore, for the jury to say, under all these circumstances, what was the effect of the words, and whether they implied a warranty of genuineness, or conveyed only a description or expression of opinion. I think that their finding was right; Canaletti is not a very old painter. But, at all events, it was proper that the bill of parcels should go to the jury with the rest of the evidence." See also Lomi v. Tucker, 4 C. & P. 15; Hill v. Gray, 1 Stark. 434; De Sewhanberg v. Buchanan, 5 C. & P. 343; Hough v. Richardson, 3 Story, 690.