Deming v. Darling
| Citation | 20 N.E. 107,148 Mass. 504 |
| Parties | DEMING v. DARLING. |
| Decision Date | 28 February 1889 |
| Court | United States State Supreme Judicial Court of Massachusetts |
Lund & Welch and W.C. Jordan, for plaintiff.
S.K Hamilton, for defendant.
This is an action for fraudulent representations, alleged to have been made to the plaintiff's agent for the purpose of inducing the plaintiff to purchase a railroad bond from the defendant. It appears that the bond was purchased from the defendant's firm, and not from the defendant alone, but we shall not consider very carefully whether this constituted a variance, since, if it did, an amendment would be allowed at any time. If the contract had been sued upon, instead of being a collateral matter, non-joinder would have had to be pleaded in abatement, and there seems to be no obvious reason for greater strictness in this case. Wilson v Nevers, 20 Pick. 20, 22; Tuttle v. Cooper, 10 Pick. 281, 283.
Among the representations relied on, one was that the railroad mortgaged was good security for the bonds, and another was that the bond was of the very best and safest, and was an "A No. 1" bond. With regard to these and the like, the defendant asked the court to instruct the jury "that no representations which the defendant might have made or did make to Dr. Jordan, in relation to the value of the bond in question, or of the railroad, its terminals, or other property which were mortgaged to secure it, with other bonds, even though false, were representations upon which Dr. Jordan ought to have relied, and are not sufficient to furnish any grounds for this action;" and also "that each of the expressions, 'and that the same [meaning said rail, and all the property covered by the mortgage] was good security for said bonds,' 'that said bond was of the very best and safest, and was an "A No. 1 bond," ' are expressions of opinion of value, and even though false are not such representations as Dr. Jordan had a right to rely upon, and are not enough to furnish any grounds for this action.”
The court declined to give these instructions, and instead instructed the jury that "an expression of opinion, judgment, or estimate, or a statement of a promissory nature, relating to what would be in the future, so far as they were expressions of opinion, if made in good faith, however strong as expressions of belief, would not support an action of deceit."
It will be seen that the fundamental difference between the instructions given and those asked is that the former require good faith. The language of some cases certainly seems to suggest that bad faith might make a seller liable for what are known as "seller's statements," apart from any other conduct by which the buyer is fraudulently induced to forbear inquiries. Pike v. Fay, 101 Mass. 134. But this is a mistake. It is settled that the law does not exact good faith from a seller in those vague commendations of his wares which manifestly are open to difference of opinion,--which do not imply untrue assertions concerning matters of direct observation, (Teague v. Irwin, 127 Mass. 217...
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