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act upon them, and such opinions are knowingly false, it has been held that an action for deceit will lie. They throw one off his guard and may well be rightfully relied upon. Again, when an actual relation of confidence exists between two persons, the one in whom the trust is placed is bound to keep his opinions within reasonable limits.99

Difficulty is frequently experienced in determining when a statement is one of fact or merely one of opinion. The mode of expression, the ability of the party making the statement to know the truth, and the circumstances of the particular case must be taken into consideration." "It is often impossible to determine, as a matter of law, whether a statement is a representation of fact, which the defendant intended should be understood as true of his own knowledge, or an expression of opinion. That will depend upon the nature of the representation, the meaning of the language used, as applied to the subject matter, and as interpreted by the surrounding circumstances in each case. The question is generally to be submitted to the jury."100

A state

ment may be made as of a fact when the circumstances and matter concerned all indicate that the statement can be nothing more than opinion. In such case no deceit can be based thereon. For instance, the bounda ries of land may be known by all parties to be indefinitely located and at such a time an expression indicating the situation of one line will be held to be merely an opinion.101 So representations as to speed of a horse when not coupled with assertions of personal knowledge, but with a true statement of a former employment

98 Medbury v. Watson, 6 Met. 246, 39 Am. Dec. 726, Kenner v. Harding, 85 Ill. 274, 28 Am. Rep. 615; Brown v. Castles, 11 Cush. 259.

99 Fisher v. Budlong, 10 R. I. 525; Smith v. Patterson, 33 Ohio St. 70.

100 Stubbs v. Johnson, 127 Mass. 219.

101 Foster V. Kennedy's Admr., 38 Ala. 359, 81 Am. Dec. 56.

of the horse "can only be regarded as the expression of a strong belief in the truth of the representation."102 Again, statements as to credit or insolvency of others have been held to be but opinions founded upon reasonable grounds.103 On the other hand, a representation in the form of an opinion may carry with it an implied assertion of the truth of facts from which the opinion has been formed. When such is the case, and these facts are false to the knowledge of the person making the statement, it may be made the basis of an action for fraud. Thus the opinion as to a third person's credit may imply a knowledge of facts upon which such an opinion may be reasonably founded.104 But whether representations as to credit and solvency are as to fact or opinion is a question for the jury.'

105

§ 735. Misrepresentations as to the Law. The gen eral doctrine is well settled that misrepresentations as to what the law governing the rights of parties interested in a given transaction is, do not constitute fraudulent representations or furnish ground for an action. of deceit. This is especially true where there are no confidential relations between the parties. The reason

102 Cummings v. Cass, 52 N. J. L. 77, 18 Atl. 972. "Express words of affirmation of personal knowledge may be nullified by the nature of the facts concerning which the representations were made."

103 Cowley v. Smith, 46 N. J. L. 380, 50 Am. Rep. 432; Belcher v. Costello, 122 Mass. 189.

104 "A representation that a note is as good as gold may be founded on an absolute personal knowledge of the maker's financial ability. The known facts upon which financial responsibility depends may be so clear and cogent as to make the consequent conclusion which ordinarily would be a matter of opinion, a matter of moral certainty which can properly be called knowledge": Andrew v. Jackson, 168 Mass. 266, 60 Am. St. Rep. 390, 47 N. E. 412. See Dickey v. Morrell, 102 N. Y. 454, 55 Am. Rep. 824; Homer v. Perkins, 124 Mass. 431, 26 Am. Rep. 677; Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec. 551.

105 Homer v. Perkins, 124 Mass. 431, 26 Am. Rep. 677.

or foundation principle for this rule is that the truth or falsehood of such representations can be tested by ordinary vigilance and attention; furthermore they are to be regarded and understood as mere opinion in regard to the law. 106 For example, a representation that a vendor's wife is entitled upon his death to dower in lands only of which he died seised and possessed, and not in lands sold and conveyed during coverture,107 or representation of the legal rights of an insured under an insurance policy in case of loss, to effect an adjustment, 108 or declarations by an insurance agent that nonoccupancy of a building renders the policy void,109 are illustrative of the application of the rule.

It is held, however, that if a person who with knowledge of the law deceives another whom he knows to be ignorant, it is fraud,110 especially in the case of an attorney through whose misrepresentations as to the law another is misled actionable fraud exists.111 Whereever there is a fiduciary or confidential relation existing

106 Fish v. Clelland, 33 Ill. 243; Upton v. Tribilcock, 91 U. S. 50; Martin v. Wharton, 38 Ala. 637; Gormeley v. Gymnastic Assn., 55 Wis. 350, 13 N. W. 242. "Misrepresentations touching a party's legal rights will generally afford no sufficient reason on which to avoid a contract. Such representations, however erroneous and strongly asserted, are to be treated, when made to a party free to inform himself of his legal rights, as mere statements of opinion. The exceptions to the operation of this rule are cases in which some fiduciary relation is found to exist, or such circumstances as show a confidential relation which gives the injured party good right to rely upon such representations, and he does so to his injury": Insurance Co. v. Reed, 33 Ohio St. 283, 294. "Misrepresentations as to the legal effect of a written instrument do not constitute fraud": Clodfelter v. Hulett, 72 Ind. 137. Representations made by an agent of an adverse interest as to what the law will or will not do, or will not permit to be done: Thompson v. Phoenix Ins. Co., 75 Me. 55, 46 Am. Rep. 357.

107 Martin v. Wharton, 38 Ala. 637.

108 Insurance Co. v. Reed, 33 Ohio St. 283.

109 Thompson v. Phoenix Ins. Co., 75 Me. 55, 46 Am. Rep. 357. 110 Jordan v. Stevens, 51 Me. 78, 81 Am. Dec. 556.

111 Kinney v. Dodge, 101 Ind. 573.

Torts, Vol. II-88

between parties,112 or where one of them with superior means of information and having a knowledge of the law, obtains an unconscionable advantage over another who is ignorant, and has not been in a position to become informed, then misrepresentations of law become actionable.113

§ 736. Fraudulent Promises.-The test of deception is a misrepresentation of an existing or past fact or transaction. An engagement or promise to be fulfilled in the future is not a representation. A promise, though fraudulently made and with no intention of performing the same, ordinarily and in the absence of peculiar circumstances rendering it otherwise, is not actionable. A promise to perform an act, though accompanied at the time with an intention not to perform, is not such a representation as is ground for an action at law. 114

There are circumstances in which the fraudulent promise, or the promise with no intention to fulfill or perform the same, may constitute the device or medium through which a fraud is committed. This principle is clearly recognized and applied where a contract or a sale is superinduced by a fraudulent promise, in which case the deceitful promise constitutes such fraud, it is said, as will avoid the contract.115 Promises made by

112 Champion v. Woods, 79 Cal. 17, 12 Am. St. Rep. 126, 21 Pac. 534; Insurance Co. v. Reed, 33 Ohio St. 283 (dictum in opinion, p. 294).

113 Champion v. Woods, supra.

114 People v. Healy, 128 Ill. 9, 15 Am. St. Rep. 90, 20 N. E. 692. "An engagement or promise to be fulfilled in the future is not a representation": Ansley v. Bank, 113 Ala. 467, 59 Am. St. Rep. 122, 21 South. 59. Promises ordinarily not fraud: Chicago etc. Ry. Co. v. Fitterington, 84 Tex. 218, 31 Am. St. Rep. 39, 19 S. W. 472; Adams v. Schiffer, 11 Colo. 15, 17 Am. St. Rep. 202, 17 Pac. 21; Murray v. Smith, 42 111. App. 548.

115 Ansley v. Bank of Piedmont, 113 Ala. 467, 59 Am. St. Rep. 122, 21 South. 59; Sweet v. Kimball, 166 Mass. 332, 55 Am. St. Rep. 406, 44 N. E. 243; Chicago etc. Ry. Co. v. Titterington, 84 Tex. 218,

one possessed of superior knowledge on a subject made with intent to deceive are regarded as fraudulent.116 A promise made to induce another to come into the state where he is arrested gives rise to a right of action.117 It is said that the breach of a promise contractual in its nature, or of an engagement, which will support a claim for recoupment or setoff, must be one capable of enforcement.118 A promise to pay money, or that a dam will always in the future continue to furnish sufficient power, ,120 or a promissory statement that one will in the future sell goods at a particular price and time, or will pay money, or the like,121 are illustrations of promises which are not actionable.

119

§ 737. False Statements to Mercantile Agencies.— Mercantile agencies in the commercial world have come to be such a recognized agency in the modern conduct of business that courts take judicial notice that their function is to collect information concerning the financial condition of persons in business and communicate the same to business men, on application.122 Leading up to the rule of responsibility for false statements made by merchants to such agencies, the legal effect

31 Am. St. Rep. 39, 19 S. W. 472, and cases cited; Gross v. McKee, 53 Miss. 536; Dowd v. Tucker, 41 Conn. 203; Norfolk etc. Hosiery Co. v. Arnold, 49 N. J. Eq. 390, 23 Atl. 514; Goodwin v. Horne, 60 N. H. 486; Adams v. Schiffer, 11 Colo. 15, 7 Am. St. Rep. 202, 17 Pac. 21,

116 French v. Ryan, 104 Mich. 625, 62 N. W. 1016.

117 Sweet v. Kimball, 166 Mass. 332, 55 Am. St. Rep. 406, 44 N. E. 243.

118 Ansley v. Bank of Piedmont, 113 Ala. 467, 59 Am. St. Rep. 122, 21 South. 59.

119 Patterson v. Wright, 64 Wis. 289, 25 N. W. 10. 120 Morrison v. Koch, 32 Wis. 254.

121 Dawe v. Morris, 149 Mass. 188, 14 Am. St. Rep. 404, 21 N. E. 313; Knowlton v. Keenan, 146 Mass. 86, 4 Am. St. Rep. 282, 15 N. E. 127.

122 Holmes v. Harrington, 40 Mo. App. 661, Eaton, Cole etc. Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389.