Sec. 290. Assertions And Opinions Fraudulent In Intent

In Hetland v. Bilstad, 118 N. W. 423, 424 (Iowa 1908), it was said: "Parties in negotiating deals have the right to exalt the value or quality of their own property to the highest point credulity will bear, provided their efforts in this line go no further than puffing or praise which the vendor may properly indulge in; but statements of value or quality may be made with the purpose of having them accepted as of fact, and, if this is done, and so relied on, they are to be treated as the parties designed they should be, namely, representations of fact.28 In that case the court said: 'The evidence in behalf of plaintiff clearly indicated the intention of Walsh that his assertion of the value of the land should be acted upon as true, and not merely as his estimate, and, if so, and it was knowingly false and induced an exchange by plaintiff to her damage, it was actionable.' This is fully sustained by the authorities.29 The rule is forcibly stated in Murray v. Tolman (162 111. 417; 41 N. E. 748): 'Where the vendee is wholly ignorant of the value of the property, and the vendor knows this, and also knows that the vendee is relying on his (vendor's) representations as to the value, and such representation is not a mere expression of opinion, but is made as a statement of fact, which statement the vendor knows to be untrue, such a statement is a representation by which the vendor is bound.' "

■ Citing Watson v. People. 87 N. Y. 561; Simar v. Canaday, 53 N. Y. 298; Hickey v. Morrell, 102 N. Y. 454. 463; Schumacher v. Mather, 133 N. Y. 590, 595. See also Maupin on Marketable Titles (2nd Ed.), Sec. 106.

28 Citing Mattanch v. Walsh, 136 Iowa 225; 113 N. W. 818.

29 Citing Hickey v. Morrell, 102 N. Y. 463; 7 N. E. 325; 55 Am. Rep. 824; Cnlley v. Jones, 164 Ind. 168; 73 N. E. 94; Murray v. Tolman. 162 111. 417; 41 N. E. 748; McKnight v. Thompson, 39 Neb. 752; 58 N. W. 453; People v. Peckens. 153 N. Y. 576; 47 N. E. 883; Horton v. Lee, 106 Wis. 439; 82 N. W. 360; McDonald v. Smith. 139 Mich. 211; 102 N. W. 669; Stack v. Nolte, 29 Wash. 188; 69 Pac. 753; Mountain v. Day, 91 Minn. 249; 97 N. W. 883; Morgan v. Dinges, 23 Neb. 271; 36 N. W. 544; 8 Am. St. Rep. 121. See also Crompton v. Beedle, 75 Atl. 335 (Vt. 1910).

The law on this subject is, however, not free from conflict, and some of the authorities do not regard an expression of value as a basis for fraud unless the property is at a distance and the vendor prevents the vendee from seeking information.30

Sec. 291. When Expression Of Opinion Is Fraudulent

All that can be said, therefore, when referring to the subject in a general way, is that an expression of opinion or of value may sometimes constitute fraud.31 "There is no certain rule by the application of which it can be determined when false representations constitute matters of opinion or matters of fact. Each case in a large measure must be judged upon its own circumstances."32 But "the opinion of an expert is such a fact which he cannot knowingly misstate without incurring legal liability."33

A broker was held liable for misrepresenting the value of land and thus inducing a person to loan money thereon on mortgage, to the loss of the lender.34

Dolan v. Cummings, 116 App. Div. 787 (N. Y. 1907), presents a case showing a still different phase, where it may be said that there was fraud with respect to the value of property. The headnote, which tersely gives the law of the case, states: "A relation of confidence and trust exists between brothers and sisters who are tenants in common of lands, and if one tenant conceals the fact that he has had a specific offer for the real estate and induces his co-tenants to sell their interest to him at a much lower value, they are entitled to rescind the sale on discovering the offer. Under such circumstances it is incumbent upon the purchaser to show affirmatively that no deception was practiced; and when it appears that he not only concealed the offer he had received, but advised his vendee not to see the other owners and represented to them that he took great risks in buying the property, he is guilty of false representation, and the sale should be rescinded."

30 Hetland v. Bilstad, 118 N. W. 424 (Iowa 1908).

31 See also Snively v. Meizsell, 97 111. App. 370-373 (1901), where many authorities are cited.

32 Reeves v. Corning, 51 Fed. Rep. 774, quoted in Snively v. Melxsell, supra.

33 Conlan v. Roemer, 52 N. J. L. 58 (1889), (citing Picard v. McCormlck, 11 Mich. 68; Kost v. Bender, 25 Mich. 515; Stewart v. Stearn, 63 N. H. 99; Wise v. Fuller, 2 Stew. Eq. 257).

34 Rubens v. Mead, 53 Pac. Rep. 432 (Cal. 1898).