Sec 215

From representation, as will hereafter appear more fully,4 are also to be distinguished expressions of opinion. There are innumerable matters as to which intelligent persons may honestly differ in opinion; and when opinions in such matters are communicated as opinion, it being open to the other party to make his own investigations, they are not to be regarded as contractual.5

Expressions of opinion not representation.

1 "The fraud," said Lord Abinger, in Moens v. Heyworth, 10 M. & W. 155, " which vitiates a contract, and gives a party a right to recover, does not in all cases necessarily imply moral turpitude.".

2 Lord Abinger, Moens v. Heyworth, ut supra; Reese Silver Co. v. Smith, 4 Eng. Ap. 64. As to rescission in general, see infra, sec 282 et seq. In Chil-ders v. Wooler, 2 E. & E. 287, it was held that, "to support an action for false representation, the representation must not only have been false in fact, but must also have been made fraudulently." See to same effect, Evans v. Collins, 5 Q. B. 804 ; Western Bank v. Addie, L. R. 1 Sc. Ap. 145. That honest belief is a defence to an action based on fraud, see, further, Benj. on Sales, 3d Am. ed. sec 429 ; Lord v. God-dard, 13 How. U. S. 198 ; McDonald v. Taufton, 15 Me. 225 ; Hanson v. Edgerley, 29 N. H. 343; Pike v. Fay, 101 Mass. 134; Cooper v. Lovering, 106 Mass. 77; Beach v. Bemis, 107 Mass. 498 ; Binnard v. Spring, 42 Barb.

470; Howell v. Biddlecom, 62 Barb. 131; Stilt v. Little, 63 N. Y. 427; Boyd v. Browne, 6 Barr, 210; Dilworth v. Bradner, 85 Penn. St. 238; Merwin v. Arbuckle, 81 111. 501; St. Louis R. R. v. Rice, 85 111. 406 ; Bondurant v. Crawford, 22 Iowa, 40; Kimbell v. Moreland, 55 Ga. 164. That reckless misstatements are to be regarded as fraudulent, see infra, sec 241. That an action for negligence can be maintained by a party injured by a negligent erroneous assertion will appear hereafter. Infra, sec 1043.

3 Infra, sec 279.

4 Infra, sec 259-263.

5 Anderson v. Ins. Co. L. R. 7 C. P. 65 ; Barker v. Windle, 6 E. & B. 675 ; Learning v. Snaith, 16 Q. B. 275; Watts v. Cummins, 59 Penn. St. 84 ; Reed v. Sidener, 32 Ind. 373 ; Drake v. Latham, 50 111. 270; Clark v. Ralls, 50 Iowa, 275 ; McClanahan v. McKin-ley, 52 Iowa, 222; Starnes v. Erwin, 10 Ired. 226 ; Bradford v. Bush, 10 Ala. 386 ; for other cases, see infra, sec 249 et seq.; In McLay v. Perry, 44 L. T. N.

An erroneous statement of the law by a party not professing to be an expert, therefore, is not a misrepresentation that avoids.1-If a purchaser desires to fix liability on a vendor, for the latter's conjectural statements of opinion, a warranty should be required, or specific averments to which the vendor is notified he will be held.2 And a statement by a vendor, during the negotiation for the sale of a mill and water-power, that " the stream would furnish water to run the mill day and night, eight months of the year," has been held, when it turned out to be erroneous, no fraud being shown, not to entitle the vendee to damages.3