Ralph F. Niles v. Edward Danforth

Decision Date03 October 1923
Citation122 A. 498,97 Vt. 88
PartiesRALPH F. NILES v. EDWARD DANFORTH ET AL
CourtVermont Supreme Court

May Term, 1923.

ACTION OF CONTRACT on a promissory note given for a tractor and equipment. Answer of false warranty, amended during trial to an answer alleging false and fraudulent representations by plaintiff on which defendants relied in making the purchase. Trial by jury at the June Term, 1922, Bennington County Fish, J., presiding. Verdict and judgment for the defendants. The plaintiff excepted. The opinion states the case.

Judgment affirmed.

Holden & Healy for the plaintiff.

Present WATSON, C. J., POWERS, TAYLOR, SLACK, and BUTLER, JJ.

OPINION
POWERS

This is an action of contract on a promissory note given by the defendants for a tractor, trailer, and equipment bought by them of the plaintiff. An affidavit of defense setting up a false warranty, was, by agreement, treated as the defendants' answer. During the trial, the defendants were allowed to amend their answer by alleging false and fraudulent representations on the part of the plaintiff, by which they were induced to make the purchase; and thereafter, the defendants relied exclusively on that defense. At the close of the evidence, the plaintiff moved for a verdict on the ground that there was no evidence tending to establish such representations as would avoid the note. In support of this motion, the plaintiff took the position that the representations relied upon by the defendants, and which their evidence tended to show, were expressions of mere matter of opinion, and not representations of existing facts. The motion was overruled and an exception saved.

Thereupon, the case went to the jury on two of the representations, only: (1) That the tractor could be operated on the highway 365 days in the year, regardless of weather conditions and the condition of the highway, and would haul loads of three or four tons and as much as any team would haul at a load; (2) that the tractor would haul where trucks and teams could not work, and would work in the snow. A verdict for the defendants was returned.

There is a manifest tendency in the recent cases to restrict rather than extend the application of the common law maxim, caveat emptor, and to relieve an innocent purchaser who has become the victim of an unconscionable bargain. Aultman, etc., Machine Co. v. Schierkolk, 95 Kan. 737, 149 P. 680; Wooddy v. Benton Water Co., 54 Wash. 124, 102 P. 1054, 132 A. S. R. 1102. "It is not the spirit of the law," says Chief Justice Rugg, in Noyes v. Meharry, 213 Mass. 598, 100 N.E. 1090, "to extend for the benefit of sellers the limits of immunity for false statements under the guise of trade talk." It is in this more righteous spirit that the maxim is now applied.

That false representations, in order to be successfully made the basis of recovery or defense, must ordinarily be assertions of fact and not matters of opinion or prediction, is too firmly established by our cases to require discussion. But it is not always that an opinion has this standing in an action for deceit. Belka v. Allen, 82 Vt. 456, 74 A. 91. If a statement of opinion is made as an assertion of fact, with the intent that it shall be so received, and it is so received, it may afford the basis of an action for fraud. Crompton v. Beedle, 83 Vt. 287, 75 A. 331, 30 L. R. A. (N. S.) 748, Ann. Cas. 1912A, 399; Arnold v. Somers, 92 Vt. 512, 105 A. 260.

The representations as to what this tractor would do in the work to which the defendants proposed to put it were of such a character and were made in such circumstances as to warrant, if not compel, the inference that they were intended as statements of fact rather than predictions and opinions. It cannot be said otherwise as a matter of law. It was said in Keithley v. Mutual Life Ins. Co., 271 Ill. 584, 111 N.E. 503, that: "The statement that a particular article will bear a certain strain or sustain a certain weight; that a machine will do certain work; that land will produce certain crops, or the like, although future in form, refers to the suitability or capacity of the article or machine for the proposed purpose, or the character or fertility of the soil, or the possession of the attributes which will produce the stated results, and amounts to a statement of an existing fact." We indorse this as a correct statement of the law with the qualification that such statements are, in some circumstances, mere opinions or predictions, while in others, they are assertions of fact; and in case of doubt, their character in this respect is a question of fact.

The law does not unqualifiedly pronounce representations as to the qualities of a machine to be expressions of opinion. They may be such, or they may be statements of fact. It is usually for the jury to say. Foster v. Kennedy's Admr., 38 Ala. 359, 81 A. D. 56. Misrepresentations as to what work a machine will do, made to induce its sale and innocently relied upon by the purchaser to his damage, are actionable. Burroughs Adding Machine Company v. Scandinavian-American Bank, (D. C.) 239 F. 179.

That these representations were of a most extravagant character, and would hardly have been accepted by an intelligent person without a practical test, does not protect the plaintiff from the effects of his deception. They related to such matters as his agent could fairly be assumed to know about, and the defendants had a right to rely upon them, King v. Livingston Mfg. Co., 180 Ala. 118, 60 So. 143; Lehigh Zinc & Iron Co. v. Bamford, 150 U.S. 665, 37 L.Ed. 1215, 14 S.Ct. 219; Fitzgerald v. Metropolitan Life Ins. Co., 90 Vt. 291, 98 A. 498. Extravagant as they were, they were not so fantastic as those in Kendall v. Wilson, 41 Vt. 567, wherein it was held that one who had been made to believe that the machine he was buying, once started would never stop, could recover of the swindler.

But the plaintiff says that the scienter and intent to deceive are not shown. These are usually questions of fact (Carey v. Hart, 63 Vt. 424, 21 A. 537; Harponola Co. v. Wilson, 96 Vt. 427, 120 A. 895) and both may be implied where, as here, one makes a statement as of his own knowledge, when, in fact, he knows nothing about it. Cabot v. Christie, 42 Vt. 121, 1 A. R. 313; Stevens v. Blood, 90 Vt. 81, 96 A. 697; McAllister v. Benjamin, 96 Vt. 475, 121 A. 263.

None of these questions could be ruled for the plaintiff as matter of law, and his motion was properly overruled.

It appeared at the trial that the defendant, Edward Danforth, expected to take the job of hauling milk from East Rupert and Dorset to a creamery in Manchester, which would require a trip every day in the year; and that he expected to haul some logs and lumber; and that it was for this work that he was buying the tractor and equipment. Subject to objection and exception, he was allowed to testify that, during the negotiations, for his purchase, he told Eddington, the plaintiff's selling agent, all about his plans and the uses to which he wanted to put the tractor, and that Eddington then said, in effect, that it would do the work as so required. At the time this testimony was admitted the case was being tried on the issue of false warranty. But, as already stated, later in the trial, the issue was made into one of fraudulent representations. So we need not stop to inquire whether this evidence was admissible when rereceived, for it became admissible by the amendment to the answer; therefore, the error in its admission, if any, was cured. Preston v. Bancroft, 62 Vt. 86, 19 A. 116; First National Bank v. Johnson, 190 Ala. 566, 67 So. 234; General Electric Co. v. National Contracting Co., 178 N.Y. 369, 70 N.E. 928. Some attempt is made in the brief to show that this evidence was, on grounds not stated below, inadmissible under the amended answer, but we give this question no attention.

The witness was allowed to testify that he could draw with horses on the road referred to loads that the tractor could not haul. This was excepted to on the ground that it was immaterial. It is now argued that nothing appeared to show similarity of conditions at the times referred to. This question, too, being here put on grounds not stated below, is not...

To continue reading

Request your trial
17 cases
  • Louis Girard Et Ux. v. Vermont Mutual Fire Insurance Co.
    • United States
    • Vermont Supreme Court
    • May 5, 1931
    ... ... [154 A. 669] ... evidence necessarily takes a wide range. Niles v ... Danforth, 97 Vt. 88, 95, 122 A. 498; ... Downing v. Wimble, 97 ... ...
  • Land Finance Corporation v. Sherwin Electric Co
    • United States
    • Vermont Supreme Court
    • May 8, 1929
    ...the record does not show it. The action of the court was in accord with the spirit of the statute, G.L. 1795, and is supported by Niles v. Danforth, supra. the defendant discovered the fraud, it had the right to rescind the contract and recover back what it had paid, or resist an action for......
  • Wilfred Moncion v. Oliva Bertrand
    • United States
    • Vermont Supreme Court
    • January 16, 1925
    ... ... authorities. Niles v. Danforth, 97 Vt. 88, ... 122 A. 498. See Greenleaf, on Ev. (15th ed.) ... ...
  • State v. Wallis L. Fairbanks
    • United States
    • Vermont Supreme Court
    • November 6, 1929
    ... ... as the State. " See also Danforth v ... Streeter, 28 Vt. 490, 495; Eddy v ... Davis, 34 Vt. 209, 212; ... Patterson's Admr. v ... M. W. & A., 89 Vt. 305, 95 A. 692; Niles v ... Danforth, 97 Vt. 88, 122 A. 498; ... Hendrickson v. International ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT