them certain land by orally promising that upon repayment of the money they would reconvey the land. It was held that their refusal to reconvey upon tender of the money was not actionable as a tort.

Where a representation is made as to present design or intent, while the subsequent failure to execute such design or intent will not amount to actionable fraud, there is fraud if, at time of the assertion, the intent or design is not in fact entertained.29 In a leading English case, 30 it was held that it is actionable deceit to induce advances of money to a company by false statements regarding the objects for which the money is desired.

A promise impliedly includes an assertion that the promisor intends to perform the act promised. If the promisor does not at the time have such intent, there is a false statement of fact and the promise is fraudulent.31 This principle has its most important application in purchases of goods on credit by one who is insolvent. The insolvency of the buyer and his knowledge thereof will not be sufficient to constitute fraud, for he may none the less intend and expect to pay.32 But if, at the time he purchased, he intended not to pay or knew that he would not be able to pay, he is guilty of fraud.33 It has been held that to constitute fraud there must be an intent

29 Edgington v. Fitzmaurice, 29 Ch. Div. 459 (Eng.), LEADING ILLUSTRATIVE CASES; Swift v. Rounds, 19 R. I. 527, LEADING ILLUSTRATIVE CASES. 30 Edgington v. Fitzmaurice, 29 Ch. Div. 459 (Eng.).

31 Swift v. Rounds, 19 R. I. 527, LEADING ILLUSTRATIVE CASES; Ayres v. French, 41 Conn. 142; Douthitt v. Applegate, 33 Kan. 395; but see Knowlton v. Keenan, 146 Mass. 86; Gallager v. Brunel, 6 Cow. 346 (N. Y.). 32 Swift v. Rounds, 19 R. I. 527; Burrill v. Stevens, 73 Me. 395. 33 Ayres v. French, 41 Conn. 142; Swift v. Rounds, 19 R. I. 527.

never to pay, and that a mere intent not to pay at the time specified is not enough.34

13. Opinions.-One may freely express his opinions without the risk of being held accountable, should they turn out to be unsound; the law does not require him to be answerable for their correctness. There is no liability in tort to another who is misled by the opinion to his damage, provided it be expressed as an opinion and not apparently as a positive statement of fact.35 In Gordon v. Butler,36 where the plaintiff made a loan upon the security of land, relying upon the written certificate of disinterested persons that "in their best judgment" the land was worth a certain amount, it was held, upon the land turning out to be worth much less, that the persons thus certifying were not liable as for deceit.

The expression of an opinion, however, does involve the assertion of a fact, i. e., that the speaker is actually of the opinion expressed. If this assertion is false, if the opinion is not honestly entertained, there is a false representation of fact which, if relied upon to the plaintiff's damage, will constitute actionable deceit.37 The defendant cannot be

34 Burrill v. Stevens, 73 Me. 395.

35 Gordon v. Butler, 105 U. S. 553, LEADING ILLUSTRATIVE CASES; Milliken v. Thorndike, 103 Mass. 382; Hedin v. Minneapolis Medical, etc., Institute, 62 Minn. 146.

36 105 U. S. 553.

37 People v. Peckens, 153 N. Y. 576; Birdsey v. Butterfield, 34 Wis. 52; Smith v. Land and House Property Corporation, 28 Ch. Div. 7 (Eng.), LEADING ILLUSTRATIVE CASES. Probably a mala fide statement of opinion, however, would ordinarily be a statement "of an irrelevant fact, for it is of no consequence what the opinion is," unless it be a matter peculiarly within the knowledge of him who makes the statement.

held accountable for the soundness of his opinion, but only for the truth of the statement that he has such an opinion.

After all, though, it should not be forgotten that statements of fact and expressions of opinion differ from each other in degree merely, not in kind. Extreme instances show considerable difference; that which is cautiously expressed as a mere opinion and that which is asserted as an unqualified positive statement of fact are quite unlike and seem to warrant the usual rigid classification into fact and opinion. But, in reality, there is no definite dividing line, the one gradually merges into the other.38 It is convenient to make the usual discrimination, as has been done above, but, as will be shown in a subsequent section, the same principle of law is applicable to both.39

Representations respecting the credit or pecuniary responsibility of a person are in their nature largely expressions of opinion rather than positive statements of fact.40 Such a representation, however, if false and made in bad faith, without belief that it is true, is actionable deceit.11 It has been held that

38 Cowley v. Smyth, 46 N. J. L. 380, LEADING ILLUSTRATIVE CASES; Cummings v. Cass, 52 N. J. L. 77; Cabot v. Christie, 42 Vt. 121.

39 See § 18.

40 Haycraft v. Creasy, 2 East 92 (Eng.), LEADING ILLUSTRATIVE CASES. 41 Pasley v. Freeman, 3 T. R. 51 (Eng.). It matters little whether we call it opinion or statement of fact, the result is the same. From its nature and the attendant circumstances, the representation implies belief of a certain degree of persuasiveness, and if the defendant possesses that degree of belief which he virtually represents that he has, he is free from liability. Haycraft v. Creasy, 2 East 92. See § 18.

Statutes have been enacted in England and in some American states rendering such representations non-actionable unless made in writing.

a representation by a party to a contract, that he is a person safely to be trusted and given credit to, is mere "dealer's talk," and not actionable, though made in bad faith. But misrepresentations made to a commercial agency to be communicated to subscribers of the agency, whereby such persons are induced to extend credit, are actionable as deceit.43

44

Representations of law are normally merely opinions and are subject to the same rules; there is no responsibility generally for the correctness of the representation, though there may be liability in cases of bad faith and especially where confidence is reposed. The question of negligent legal advice or representations is quite a different matter.45 Statements respecting existing rights and liabilities are often to be regarded as representations of fact, and any representation of law involving as part of it a proposition of fact will be subject, as respects the latter, to the rules governing ordinary representations of fact.46

14. Sellers' puffing statements-Value.-There is a class of false statements in regard to which sellers of property are given considerable latitude, though less than formerly. The law recognizes the almost universal habit of exaggerated praise and commen

42 Lyons v. Briggs, 14 R. I. 222; Jude, Snow & Co. v. Woodburn, 27 Vt. 415.

43 Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. App. 31, LEADING ILLUSTRATIVE CASES; Tindle v. Birkett, 171 N. Y. 520.

44 Gormely v. Gymnastic Association, 55 Wis. 350; Townsend & Milliken v. Cowles, 31 Ala. 428; Thompson v. Phoenix Ins. Co., 75 Me. 55; Champion v. Woods, 79 Cal. 17.

45 See subject, LEGAL CAUSE AND NEGLIGENCE.

46 Dashiel v. Harshman, 113 Iowa 283; Ward v. Wiman, 17 Wend. 193 (N. Y.); Kehl v. Abram, 210 Ill. 218.

dation of the thing to be sold among vendors, as well as the fact that purchasers rarely rely upon such statements. Therefore, general commendatory statements by a vendor regarding the subject matter of the sale are not regarded as fraudulent, even though known to be false and intended to mislead,* provided there is no fiduciary relation between the parties and no definite misstatements of specific material facts are made.48 This rule appears to be due partly to the fact that such statements are commonly only opinions, partly to the notion that no one is justified in relying upon such "dealer's talk."

False representation, made to induce the purchase of a railroad mortgage bond, that the railroad was good security for the bonds, that the bond was of the very best and safest, and that it was an A No. 1 bond, have been held to be mere "simplex commendatio" and not actionable.49 On the other hand, the same court has held that, in the sale of promissory notes, false representations that the maker of the notes is a man of property and that the notes are "as good as gold," are actionable fraud.50

Representations as to value, when made by the vendor, are not subject to the rule applicable to opinions generally, but to that governing sellers' puffing statements. They are not actionable deceit, even though false to the knowledge of the vendor,

47 Bishop v. Small, 63 Me. 12, LEADING ILLUSTRATIVE CASES; Deming v. Darling, 148 Mass. 504, LEADING ILLUSTRATIVE CASES.

48 Allen v. Hart, 72 Ill. 104; Murray v. Tolman, 162 Ill. 417; Mudsill Min. Co. v. Watrous, 61 Fed. 163, 168.

49 Deming v. Darling, 148 Mass. 504.

50 Andrews v. Jackson, 168 Mass. 266.