Sharp v. Ponce

Peters, J. It was testified, that the seller of the spectacles said to the pui'diaser, "that the spectacles were a new invention ; that they were brilliants; that he had never sold them to any one else in Portland.” We think it should have been submitted to the jury to say whether this was a statement of material facts or not. As the case is presented to us, we must regard the representations as false. The defendant said, "these representations were false in every respect.” The plaintiff argues that this was dealers’ talk and puffing merely. We think a jury might, if they saw fit under all the circumstances, declare the talk to be a representation of facts. Spectacles might sell, other things equal, for more, because newly invented. A jury might regard them of more value because brilliants. It may be that brilliants of a new invention would sell better than common spectacles. The ease is not a very marked one, perhaps, but we cannot say conclusively that there was not a case to be submitted to a jury. In connection with these statements is a considerable amount of exaggeration and falsehood, which the law does not notice. The fact, however, that the representations which the law will examine are found in such association, makes them none the less significant. The fact that five hundred and thirty-seven dollars were given for fifty dollars’ worth of the goods, shows clearly enough that the defendant was somehow deceived and cheated. It should not have been ruled, as matter of law, that no defence was made out. Teague v. Irwin, 127 Mass. 217. [472] " It is not a fraudulent misstatement which avoids a contract,, to say untruly that a particular article is a very good one of its class : though it is a misstatement to say that an article belongs to a class- when it does not.” 1 Whar. Cont. §, 259. The plaintiff contends that the defendant’s- want of ordinary care and caution caused his injury; that he cheated himself. It is said that he was at fault in not examining all the parcels. He examined one and the packages were alike. And he could not discover the fraud from any inspection he could make. lie did pursue inquiry at two places, but ascertained nothing. The defendant had no immediate means of testing the seller’s statements. By no means, can it be said, as matter of law,'that the defendant was guilty of contributory negligence. The point is taken by the plaintiff, that the defendant cannot defend because he has not tendered back the articles purchased. He would be required to do that if he commenced an action in pursuance of an attempted rescission; not obliged to do so in the position of a defendant where he merely seeks to have his damages deducted from the amount of the check upon which he is sued. Exceptions sustained. ApjpletoN, C. J., Barrows, DaNforth, Virgix and SvmoNds* JJ., concurred.