East v. Worthington

• Decision Date: 09 January 1890
• Citation: 7 So. 189,88 Ala. 537
• Parties: EAST v. WORTHINGTON.
• Court: Alabama Supreme Court

7 So. 189

88 Ala. 537

EAST v. WORTHINGTON.

Supreme Court of Alabama

January 9, 1890

Appeal from circuit court, Jefferson county; J. B. HEAD, Judge.

Action by D. W. East against J. W. Worthington to recover damages for deceit. Plaintiff appeals from a judgment sustaining a demurrer to his complaint.

Smith & Lowe, for appellant.

SOMMERVILLE J.

The plaintiff entered into an agreement with the defendants, for a valuable consideration, to do a portion of the grading of a certain railroad in this state. The complaint alleges that the defendants falsely represented to the plaintiff that this grading, thus undertaken, "contained 5,000 cubic yards of borrow and 10,000 cubic yards of waste," whereas there were, in truth and fact, embraced in said grading "34,000 cubic yards of borrow and 18,000 cubic yards of waste." It is averred, further, that the plaintiff believed their representations to be true, and acted on them and that defendants had the means of ascertaining that such representations were false. On this state of facts the plaintiff brings this action of damages for deceit.

It is our judgment that the representations in question prima facie related to a matter which rested in mere opinion or estimate. It does not appear that the plaintiff did not have equal means of knowledge on the subject with the defendants, or that by the exercise of reasonable diligence he could not have ascertained the truth. We are to presume in the absence of averment or proof to the contrary, that the contracting parties were in a position of perfect equality to judge of the matter represented, it not appearing that the defendants spoke as experts. The plaintiff had no right to rely upon such an expression of opinion, nor to regard it as the affirmation of a fact. The expression of an opinion, to be the ground of action, must be shown to be knowingly false, made with intent to deceive, and to have been relied on by the deceived party as true. The case at bar scarcely differs in principle from the old case of Baily v. Merrell, 3 Bulst. 94, decided by the king's bench prior to 1656, which was an action of deceit. The plaintiff was a common carrier of goods, and bargained with the defendant to carry for hire a quantity of wood, at the rate of two shillings for every hundred-weight. The defendant, being asked by the plaintiff how many hundred-weight it contained, said it was about 800 pounds weight. Relying upon this...