Stones v. Richmond

Ellison, J. — Ordinarily a representation as to value, though false, will not be considered fraudulent if the parties are upon equal footing, but merely an expression of' [20] opinion. The exception to the rule being that if the parties are not upon equal footing the law does not preclude one from trusting another in regard to those things of which that other has the means of knowledge and the one is not in a position to know or ascertain the truth from his-own observation. If from the character, situation or surroundings of the thing traded for, one party is compelled to trust the representations of the other, and reposing special confidence in him for that purpose, relies on his proffered representations, being precluded from the situation of the property, from giving it his personal observation, or from its character being unable to judge of it, the law will protect him in the trust he reposes in the opposite party. Cahn v. Bungardt, 18 Mo. App. 115. In the case before us, however, as we interpret the evidence-in connection with the subject matter of the trade, it was not so much a representation of value as it was of quantity. So if we should hold plaintiff bound to know the value of the groceries traded her, without a specific remuneration, she could not have known the quantity of goods in stock. And being wholly inexperienced in the grocery business, while defendant was a tradesman of that character, and professing to know just what amount of goods he had and that his knowledge was based upon an invoice then just made, we think it not unreasonable that plaintiff should have relied upon his statements te that effect. The fact that defendant suggested to plaintiff that she might take an invoice to satisfy herself does not of itself relieve him from responsibility for his own misrepresentations. “Where one induces another to abstain from seeking information, mere concealment of material facts may become fraudulent. * * * Nor is the rule different where the vendor suggests examination to the purchaser, but in such a way as to indicate that such a step would be quite unnecessary.” Bigelow on Brand, 68. Here there was evidence showing that defendant stated he had invoiced the goods during the negotiations for a sale, and found there was eight hundred dollars’ [21] worth, besides fixtures, and so as to impress this statement the more fully on plaintiffs, he stated he had five thousand dollars’ worth of property to make good his statement. In this connection he suggests that plaintiff herself may take an invoice. Considering the relation of the parties, the experience of the one and the inexperience of ’the other, we think under the evidence in the cause the case was properly left to the jury. In view of the pleadings and evidence we are of the opinion the court’s action in giving and refusing instructions was proper. Waiving all objection to the fourth instruction, refused for defendant on account of its phraseology, there was no pleading on defendant’s part upon which to base it. It submits the question of ratification by plaintiffs, to the jury on account of their conduct in regard to the stock after discovering the facts. Whether the conduct was such as to satisfy the sale or estop plaintiffs from complaining, it should have been pleaded by defendant in order to justify the instruction. Wade v. Hardy, 75 Mo. 394; Bray v. Marshall, 75 Mo. 327; Noble v. Blount, 77 Mo. 235, 242. We find no error justifying a reversal and we affirm the judgment. The other judges concur.