29 Cal. 589
PAUL J. GIFFORD
ORRIN S. CARVILL
Supreme Court of California
Appeal from the District Court, Fourth Judicial District, city and county of San Francisco.
The notes in suit were given in part payment for twenty-five shares of the stock of the Amargoza Mining Company, situated in the southern part of California. The defendant had never visited the mine, and the purchase was made in San Francisco.
On the trial, the defendant introduced evidence tending to prove that the plaintiff, as an inducement for the defendant to purchase, told him he had just come from the mine, and that there were five hundred tons of ore out of the mine, which assayed as high as nine hundred dollars per ton, and that there was plenty of wood, lumber, and water near the mine to run a steam mill. The defendant also introduced evidence tending to prove that there was at the time only about twenty-five tons of ore out of the mine, which assayed only five dollars per ton, and that the mine was in a desert, with no wood or water near it, and was valueless, and had since been abandoned.
The defendant recovered judgment, and the plaintiff moved for a new trial, and assigned as one of his grounds that the evidence was insufficient to justify the verdict, in this that the matters sought to be proved were matters of opinion as to which the defendant had no right to rely on the statements of the plaintiff.
The Court denied a new trial, and plaintiff appealed.
Brooks & Whitney, for Appellant, argued that the matters which the defendant sought to prove were: first--matters of opinion, or, second--of information, as to which the defendant had no right to rely upon the statement of the plaintiff; and cited Chitty on Contracts, 397, 398. They also insisted that the matter of the answer, if true in point of fact, constituted no defence, because the defendant did not in fact rescind the contract; and cited Conner v. Henderson, 15 Mass. 319; Kimball v. Cunningham, 4 Id. 502; Perley v. Balch, 23 Pick. 283; Hyatt v. Boyle, 5 Gill & J. 121; Taymen v. Mitchell, 1 Md. Ch. Dec. 496; Marston v. Knight, 29 Me. 341; 2 Kent, 480, and notes; Kane v. Johns, 10 Watts, 109; Voorhies v. Earl, 2 Hill, 288; Lightburn v. Cooper, 1 Dana, 273; Cany v. Graman, 4 Hill, 626; Thornton v. Wynn, 12 Wheat. 193; Allen v. Anderson, 3 Humph. 581; West v. Cutting, 19 Vt. 536; Grimaldi v. White, 4 Esp. 95; Barton v. Butters, 7 East, 479; Growning v. Mendham, 1 Stark. 257; Hopkins v. Appeltry, 1 Id. 477; Miller v. Tucker, 1 C. & P. 15; Percival v. Blake, 2 Id. 514; Cash v. Giles, 3 Id. 407; Fisher v. Samuda, 1 Camp. 190; Bowman v. Johnson, 12 Wend. 566; Lander v. Taylor, 5 Johns. 296.
Sharp & Lloyd and T. I. Bergen, for Respondent, contended that under the facts of this case, the purchaser had a right to rely on the representations of the seller, and if those representations were false it was a fraud, and a good defence; that it was not a case where the seller merely represented what he himself believed as to the value of the articles, and left the determination to the judgment of the buyer; and cited 2 Kent, 486; Dogget v. Emerson, 3 Story, 733; Daniel v. Mitchell, 1 Id. 172; Small v. Atwood, 1 Young, 407, 459; Snow v. Denny, 4 Metc. 161; Buford v. Caldwell, 3 Mo. 477; Thomas v. McCann, 4 B. Mon. 601; Parham v. Randolph, 4 How. Miss. 435; Daniel v. Mitchell, 1 Story, 190; Mason v. Crosby, 1 Wood. & M. 852, et seq.; Farren v. Daniels, Id. 100; Foster v. Swasey, 2 Id. 222; Smith v. Babcock, Id. 254; Tuthill v. Babcock, Id. 299; Shaeffer v. Slade, 7 Blackf. 178; Rench v. Sheldon, 14 Barb. 66; Hill v. Gray, 1 Stark. 434; and...