Messer v. Smyth

Clark, J. Whether a false representation made by the vendor in a material matter, in a sale of land, is actionable, depends upon whether it relates to a matter concerning which both parties have not equal means of knowledge, and whether it is an expression of opinion or an affirmation of a fact. If it relates to a matter concerning which both the vendor and purchaser have equal means of knowledge, the maxim caveat emptor applies, and the purchaser is without remedy if he neglects to give attention to the means of knowledge accessible to him. He is not, however, required to exhaust all the sources of information, but to give due attention to those which it would be negligence and indiscretion to overlook or disregard. Hoitt v. Holcomb, 32 N. H. 185, 205; Irving v. Thomas, 18 Me. 418. If the purchaser exercises proper diligence, the maxim caveat emptor does not apply when there is a positive misrepresentation in a material matter. Kerr Fraud and Mistake 81. So a misrepresentation, intended by the vendor to mislead the vendee and render his examination less complete, and calculated to put common prudence off its guard, is fraudulent and actionable. Page v. Parker, 40 N. H. 47, 71; Lawton v. Kittredge, 30 N. H. 500, 508; Bean v. Her *43 rick, 12 Me. 262, 269; Kerr Fraud and Mistake 86; Medbury v. Watson, 6 Met. 246, 260. A representation which merely amounts to a statement of opinion, judgment, probability, or expectation, or is vague and indefinite in its terms, or is merely a loose, conjectural, or exaggerated statement, goes for nothing. But the misrepresentation of a material fact is actionable; and. whether an oral statement was an expression of opinion, or the representation of a material fact, is ordinarily a question for the jury. Morse v. Shaw, 124 Mass. 59; Simar v. Canaday, 53 N. Y. 298; Morrill v. Wallace, 9 N. H. 111, 115. In the present case the misrepresentations complained of relate to the quantity of hay that had been cut by the plaintiff op the farm, the quantity and quality of apples that he had raised, the amount of pasturage it had furnished, the expense of carrying it on, and the income of it. They all consist of affirmations relating to the past productions of the farm, with the exception of the estimated amount of hay the farm would produce that year. At the time'of the sale of the farm to the defendant the hay had all been cut for that year, and as the plaintiff did not inform the defendant that the previous estimate had proved incorrect, he in effect reaffirmed it, and by his conduct represented that the amount of hay actually raised on the farm that year was the quantity previously estimated. These were all statements of facts peculiarly within the knowledge of the plaintiff, upon which the defendant had the right to rely. Coon v. Atwell, 46 N. H. 510; Martin v. Jordan, 60 Me. 531. Judgment on the verdict. Smith, J., did not sit: the others concurred.