Sec 216

The test laid down as to fraudulent misrepresentations, that they must be material, applies equally to honest misrepresentations.4 There is this distinc-

Misrepre-sentations of realizing such representation." But as was shown by Mr. Pollock, in 1881, in the third edition of his work on Contracts,1 correcting in this respect the views taken in his second edition, these expressions were used in reference to a contract, and are based on an unquestionable contractual relation. Such was the opinion of the case expressed by Lord St. Leonards, who treated the decision as one upon a contract.2 The same criticism is applicable to the rule laid down by Bacon, V. C, in 1879.3 "If a man makes a representation, on the faith of which another man alters his position, enters into a deed, incurs an obligation, the man making it is bound to perform that representation, no matter what it is, whether it is for present payment, or for the continuance of the payment of an annuity, or to make a provision by will. That in the eye of a court of equity is a contract, an engagement which the man making it is bound to perform." Here the passage italicized shows that it was only as an ingredient in a contract that the representation was held to be the basis of an action. And in 1880, we have an express decision by Stephen, J., that a representation, if not a term in a contract, or not operating as au estoppel, cannot form the basis of a suit.4 Mr. Pollock, rightfully, as has been said, adopts this conclusion, surrendering that previously S. 152, the plaintiffs, having heen informed by S., a commission agent, that the defendants had a quantity of old iron in their yard for sale ("about 150 tons") wrote to the defendants, "We are buyers of good wrought scrap iron, free of light and burnt iron, for our American house, and understand from Mr. S. that you have for sale about 150 tons. We can offer you 80s. per ton."-There were intermediate letters relating to the place of delivery and expense of carting, and then the defendants wrote, "We accept your offers of the 14th and 19th inst. for old iron, viz., 80s. per ton. We delivering alongside vessel in one of the London docks. Please let us know when you can send a man here to see it weighed, and also inform us where to send it." Before S saw the plaintiffs he had seen a heap of iron in the yard of defendants, who were builders, and said, "You seem to have about 150 tons there." The reply was, "Yes, or more." The defendants only delivered forty-four tons, that being the quantity of the heap in the yard, and the plaintiffs recovered 501. damages in an action for short delivery. It was held by tion, however, to be repeated, that no action for deceit lies against a person making an honest non-negligent misrepresentation, no matter how material, though such misrepresentation is ground to rescind a contract based on it; whereas when the misrepresentation is fraudulent it not only sustains a rescission, but will support an action for deceit. The injury, also, must be imputable to the misrepresentation.1 And we may go a step further, and hold that an immaterial misrepresentation, honest or not honest, if not contractual, does not bind the party making it, unless by way of estoppel. If it did, few contracts could stand, since there are few contracts that do not contain surplusage, which from the imperfection of language, may not be exactly correct. But, as we have just seen, when one party assents to a proposal containing material misrepresentation of facts, the honesty with which these misrepresentations were made, while a defence to an action for deceit, are not a defence to an action to rescind the contract. And when it is a party's duty to know the truth of a particular fact, he cannot, on the ground of ignorance, defend himself on an action based on his misstatement.2 Nor can a vendor hold a purchaser to a sale brought about by a material though honest misrepresentation of the vendor.3-Some conflict of opinion has arisen in England from the tendency of the courts of equity to hold that a party is bound to M make good" representations made by him in business dealings.4 To adopt the language of Lord Cottenham, " a representation made by one party for the purpose of influencing the conduct of the other party, and acted on by him, will, in general, be sufficient to entitle him to the assistance of the court for the purpose must have been material, and must have produced the injury.

Grove, J., and Lindley, J., that the words "about 150 tons," were merely words of estimate and expectation, and there was no warranty as to quantity, and therefore the defendants were not bound to deliver 150 tons ; that the subject-matter of the contract was not 150 tons of iron, but the iron which S. had seen in the defendant's yard.

That a mere representation, of quality by seller, without fraud or warranty, will not sustain a suit, see Ormood v. Huth, 14 M. & W. 664 ; Dickson v. Tel. Co., L. R. 2 C. P. D. 62; L. R. 3 C. P. D. 1. Infra, sec 259-263. That a false opinion is not a false pretence, see infra, sec 259. As to error in quantity, see supra, sec 190 ; infra, sec 898.

1 Infra, sec 264; and see also Reed v. Sidener, 32 Ind. 375 ; Drake v. Latham, 50 111. 270 ; nor is an erroneous statement by a non-expert of the legal effect of a document. See cases cited infra, sec 264, and Smither v. Calvert, 44 Ind. 242 ; Clodfatter v. Hulett, 72 Ind. 137.

2 Todd v. Fambro, 62 Ga. 664. 3 Clark v. Ralls, 50 Iowa, 275.

4 See infra, sec 237-242 ; S. P. Phipps v. Buckman, 30 Penn. St. 401; Weist v. Grant, 71 Penn. St. 95.

1 See supra, sec 213 ; infra, sec 242 et seq.; and see notes to Chandler v. Lopus, 1 Smith's Lead. Cas. 7th Am. ed. 299 et seq.; May on Ins. sec 184; supra, sec 186 ; 1 Story, Eq. Jur. 12th ed. sec 134 a. As to what facts a contracting party must disclose, see infra, sec 250.

2 Supra, sec 214; infra, sec 241 ; Bur-rowes v. Lock, 10 Ves. 470; Babcock v. Case, 61 Penn. St. 436.