Davis v. Sims & Bates , 1 Hill & Den. 234 ( 1843 )

By the Court,

Nelson, Ch. J.

The evidence shows nothing beyond the expression of an opinion on the part of the defendants in respect to the character and quality of the farm in question, when compared with the Brown farm refered to, in the course of the negotiation, as a standard by which its qualities and characteristics might in some measure be tested.

The very form of expression in which the representation was made is decisive in favor of this conclusion. They frankly admit to the plaintiff, their farm is not equal to that of Brown, but assert, that if put in as good a state of cultivation it might be made equal with the exception of a few acres. No man of ordinary intelligence .could or would regard this as the assertion of a fact, which should influence him in the purchase; it did not imply knowledge; as all who heard it must have been satisfied that the party could not have known, as a matter of fact, that to which he was giving utterance. It was but the expression of an opinion, of his judgment, upon the hypothesis presented. We may say, as was said in Harvey v. Young (Yelv., 20, 21), where the action was founded upon a false affirmation of the value of a term, it was the plaintiff’s folly to give credit to such an assertion. (Dayley v. Merrill, 3 Bulst., 24; S. C. Cro. J., 386; Ekins v. Tresham, 1 Lev., 102; Parley v. Freeman, 3 T. R., 54.)

The rule of the civil law is the same. (Domat 85, book 1, sec. 11, pi. 12.)

Independently of this ground, we apprehend, it would be very difficult for the plaintiff to make out a cause of action in a case, where, if he had not the same opportunity as the defendants to obtain a knowledge of the character and condition of the farm, he, at least, had in his power all the means necessary to acquire such knowledge; and, if he failed, the failure is as much attributable to his own neglect and want of ordinary prudence, as to their representations.

In such a case, the rule caveat envptor, emphatically applies! New trial granted, costs abide event.