one who ought to know whereof he speaks, the effect of his statement is to deceive the intending purchaser. In Baughman v. Gould, 45 Mich. 481, 8 N. W. 73, the facts were that the land owner pointed out a lot which was inclosed, and represented that the property he was offering for sale included all the ground within the inclosure. The sale was made; but the purchaser discovered afterward that a portion of the ground inclosed belonged to a third person. The court, in treating the subject, said: "There being in fact a misrepresentation, though made innocently, its deceptive influence was as effective, and the consequences to Baughman as serious in respect to actual damage, as though it had proceeded from a vicious purpose. The result was a fraud on Baughman, in contemplation of law, and it entitled him to contend, in Gould's action for the purchase money, that the damage should be thrown on the latter." Facts practically identical are disclosed in Lynch v. Mercantile Trust Co. (C. C.), 18 Fed. 486, 5 McCrary, 623, in which the court said: "The owner of property, when he sells, is presumed to know whether the representation which he makes about it is true or false; and the positive statement thus made of a material fact, if false, is fraud in law. A purchaser trusts in the owner's statements, and the law will assume that the owner knows his own property and truly represents it. So, if an injury results from the statement of a material fact which influences the sale, and not from the statement of the opinion or belief of the vendor, an action will lie, if the representation is false; and it is not material whether the vendor knew to be false what was stated. If the representation as to a material point was relied on, and was stated as a fact, intended to convey the impression that the party had actual knowledge, the vendor cannot plead ignorance as an excuse, if the statement was false." In Hanson v. Tompkins, 2 Wash. 508, 27 Pac. 73, the vendor represented to the intending purchaser that a certain lot which he was offering for sale contained thirty-six and one-half acres. The sale was completed; but the purchaser afterward ascertained that the lot contained but twenty-six and one-half acres. In dis cussing the subject now under consideration, the court said: "If he knew the lot did not contain thirty-six and one-half acres, and represented to the defendants that it did, he would be guilty of fraud and deceit; but if he did not know it, and believed that the representations he made were true, and defendants, acting upon such representations, were damaged because it eventuated that they were not true, the liability of the plaintiff would be the same. In neither case will he be allowed to retain the benefit flowing from his misrepresentation." To the same effect are Banks Griffith v. Hahl (Tex. Civ. App.), 129 S. W. 400; Foster v. Kennedy's Admr., 38 Ala. 359, 81 Am. Dec. 56; Chatham Furnace Co. v. Moffatt, above. The rule announced by section 4978, Revised Codes, above, and by these courts, is not a new one. It was invoked by the high court of chancery of England in 1803, in the case of Ainslie v. Medlycott, 9 Ves. Jr. 13, in which Sir William Grant, Master of the Rolls, used this language: "No doubt by a representation a party may bind himself just as much as by an express covenant. If knowingly he represents what is not true, no doubt he is bound. If, without knowing that it is not true, he takes upon himself to make a representation to another, upon the faith of which that other acts no doubt he is bound, though his mistake was perfectly innocent." In 1835 Story announced the same rule as then in effect in this country, as follows: "Whether the party, thus misrepresenting a material fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of what is known to be positively false. And even if the party innocently misrepresents a material fact by mistake, it is equally conclusive; for it operates as a surprise and imposition upon the other party." (1 Story's Equity Jurisprudence, sec. 193.) Our conclusion is that the plaintiffs have shown themselves entitled to relief. There is not any contention made that the complaint does not state a cause of action. Apparently court and [4] counsel treated it as sufficient; for the merits of the controversy were tried, and plaintiffs offered evidence tending to show that they had restored to defendant everything received by them under the contract, although there is not any specific allegation in the complaint that they had placed the defendant in statu quo, as required by section 5065, Revised Codes, and the rules of pleading in actions of this character. (18 Ency. of Pl. & Pr. 829; 16 Cyc. 235.) The defendant, however, answered to the merits, and we are inclined to treat the complaint as amended, in view of the record as presented to us. Neither is there any contention over the question of damages. upon the theory that, if plaintiffs were entitled to recover at all, they were entitled to claim as damages for the time and money expended by them in improving the property and caring for it. Two interrogatories submitted questions to the jury as to the value of labor performed by plaintiffs in plowing some of the land and putting up hay. A third interrogatory was also submitted and answered; but it is indefinite, and we are unable to find any evidence to support the finding made. The cause was tried The judgment and order are reversed, and the cause is remanded, with directions to enter a decree in favor of the plaintiffs for the cancellation of the contract, for the recovery of $2,000 part payment, with interest at eight per cent per annum from July 27, 1910, for the further sum of $590, damages, as found by the jury's special findings 6 and 7, and for costs. Reversed and remanded. MR. CHIEF JUSTICE BRANTLY and MR. JUSTICE SMITH concur. 45 Mont.-2 WESTCHESTER FIRE INSURANCE CO., RESPONDENT, v. SULLIVAN, COUNTY TREASURER, APPELLANT. (No. 3,096.) (Submitted February 5, 1912. Decided February 6, 1912.) Taxation Insurance-Excess of Premiums-Statutes-Repeal- Taxation Insurance-Excess of Premiums-Statutes-Repeal. 1. Section 2510, Revised Codes, provides that property shall be assessed, for purposes of taxation, to the person by whom it is owned or claimed at 12 o'clock noon on the first Monday of March of each year. Section 4073, making the excess of premiums collected by insurance companies, over losses and expenses, assessable, was repealed by Act approved March 2, 1911 (Laws 1911, Chap. 67), which Act became operative upon approval. The first Monday of March fell on the 6th of the month. Held, that a tax assessed under section 4073, supra, on excess of premiums for the year 1911 was void. Statutes-Repeal-Effect. 2. The repeal of a statute has the effect of blotting it out as completely as though it never existed. Appeal from District Court, Lewis and Clark County; J. Miller Smith, Judge. ACTION by the Westchester Fire Insurance Company against Stephen J. Sullivan, county treasurer of Lewis and Clark county. From a judgment for plaintiff, defendant appeals. Affirmed. Cause submitted on briefs of counsel. Mr. Albert J. Galen, Attorney General, for Appellant. Mr. E. C. Day, for Respondent. MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. The only question presented in this case is whether the treasurer of Lewis and Clark county could lawfully collect from the plaintiff, for the year 1911, the tax heretofore imposed upon insurance companies under the provisions of section 4073, Re vised Codes. So much of this section as is pertinent reads as follows: "Each and every insurance corporation or company transacting business in this state must be taxed upon the excess of premiums received over losses and ordinary expenses incurred within the state during the year previous to the year of listing in the county where the agent conducts the business, properly proportioned by the corporation or company at the same rate that all other personal property is taxed, and the agent shall render the list, and be personally liable for the tax; and if he refuse to render the list or to make affidavit that the same is correct, to the best of his knowledge and belief, the amount may be assessed according to the best knowledge and discretion of the assessor. By an Act of the legislative assembly, approved March 2, 1911 [1] (Laws 1911, Chap. 67), which became operative immediately upon its approval, section 4073 was repealed. Notwithstanding the repeal, the county assessor demanded from the plaintiff the list provided for in section 4073. This the plaintiff furnished under protest, and thereafter, under like protest, paid to the defendant $79.69, the amount of the tax levied by the taxing authorities of the county upon the excess of premiums collected by the plaintiff, as shown therein, for the year 1910. This action was brought to recover the amount so paid. The district court held the tax unlawful and rendered judgment for the plaintiff. The defendant has appealed. Under section 2510, Revised Codes, it is the duty of the county assessor to ascertain and list all property in his county subject to taxation, and assess the same to the person by whom it is owned or claimed, or in whose possession or control it was at 12 o'clock noon on the first Monday of March of the current year. The first Monday in March, 1911, fell on the sixth day of the month. By virtue of the repeal of section 4073, there was, at the time the list was furnished and the assessment and levy were made, no provision of law requiring the payment of the tax. It was within the power of the legislature to have made a reservation in the repealing Act, requiring the payment of the tax upon the |