Sec 263

The distinctions above stated apply, a fortiori, to false warranties. A warranty is distinguished from a statement in this, that a false statement can only be sued on in an action for deceit, while a false warranty can also be sued on as a contract, it not being necessary to prove, if this form of action be chosen, an intention to deceive. But a warranty, when made with intention to deceive, will sustain an action for deceit, or an application to rescind a contract induced by it. In such case, however, there must be a specific assertion of quality attached to a particular thing. A mere conjectural estimate is not a warranty.3 On a mere warranty without fraud, therefore, the remedy is not rescission, but a suit on the warranty. If there be fraud, there is a right to rescind, notwithstanding the warranty.

Sec 264

A general misstatement of law by a vendor, not amounting to a warranty of title, does not avoid a sale, or expose the party making it to an action for deceit, even though there be grounds to infer that he knew at the time the statement was untrue.5 A party, for instance, may have strong grounds to believe that certain bonds would be held, if the question were adjudicated, to be illegal; yet a statement of his opinion that the bonds were legal would not avoid the contract, since this is an open matter in respect to which each party must depend upon his own inquiries. It would be different, however, if a party should falsely say, "there has been a decision of the supreme court validating these bonds." Again, a non-specialist is not expected to know the law, and his statement of the law, therefore, is regarded as merely conjectural, not binding him. A specialist, on the other hand, who fraudulently makes a false statement of title, exposes himself to an action for deceit. And so a general false statement that a certain class of persons have particular legal prerogatives cannot be regarded as a fraudulent false representation, though it would be otherwise if a certain person [e. g., a woman claiming to be married) is averred to have these prerogatives. In other words, a general misstatement of the law is not a false pretence, since law, in this sense, it is the duty of all persons to know.1 Hence a contract will not be rescinded in consequence of an erroneous construction of a document given by the party claiming to enforce it, unless it should appear that the party giving the construction gave it as a specialist, and that the object of the misstatement was to defraud, or that the terms construed belonged to a foreign law of which the party speaking claimed special knowledge.2

And so false warranty.

General misstatement of law does not avoid contract; otherwise as to specific opinion by specialist.

1 Supra, sec 258.

2 Supra, sec 258; Hennequin v. Nay-lor, 24 N. Y. 139; Patton v. Campbell, 70 111. 72; and cases cited supra, sec 258.

3 R. v. Ridgway, 3 F. & F. 838; R. v. Sherwood, D. & B. 251; Winsor v. Lombard, 18 Pick. 60; Chadsey v. Greene, 24 Conn. 562; McGrew v. Forsythe, 31 Iowa, 179; see fully supra, sec 219 et seq.; infra, sec 904 et seq.

4 Infra, sec 282, 904; Leake, 2d ed. 406; Street v. Blay, 2 B. & Ad. 456; Gompertz v. Denton, 1 C. & M. 207; Murray v. Mann, 2 Ex. 538. See notes to Chandelor v. Lopus, 1 Smith's L. C. 7th Am. ed. 299.

5 Upton v. Tribilcock, 91 U. S. 45, citing Beaufort v. Neeld, 12 Cl. & F. 248; Smith's case, L. R. 2 Ch. Ap. 613; Denton v. Macneil, L. R. 2 Eq. 352. As to errors of law, see supra, sec 198-9.

1 Supra, sec 198-9; Kerr on Fraud and Mistake, 90; Leake on Contracts, 182; Bispham's Eq. sec 212; Cooper v. Phibbs, L. R. 2 H. L. 170;' R. v. Sim-monds, 4 Cox C. C. 277; R. v. Davis, 11 Cox C. C. 181; Rasbdall v. Ford, L. R. 2 Eq. 750; Hirschfield v. R. R., L. R. 2 Q. B. D. 1; Bank U. S. v. Daniel, 12 Pet. 32; Upton v. Trebil-cock, 91 U. S. 45; Ogilvie v. Ins. Co., 22 How. 380; Grant v. Grant, 56 Me. 573; Pinkham v. Gear, 3 N. H. 163; Starr v. Bennett, 5 Hill, 303; Com. v. Henry, 22 Penn. St. 253; Ætna Ins. Co. v. Reed, 33 Ob. St. 283; Clem v. R. R., 9 Ind. 488; Parker v. Thomas, 19 Ind. 213; Rogers v. Place, 29 Ind. 577; Fish v. Cleland, 33 111. 238; Drake v. Latham, 50 111. 270; Townsend v. Cowles, 31 Ala. 428; Cowles v. Townsend, 37 Ala. 77; Martin v. Wharton, 38 Ala. 637; Beall v. Mc-Gehee, 57 Ala. 438; People v. San Francisco, 27 Cal. 655. That knowledge of the applicatory home law (though not of foreign law) is always presumed, see Wh. on Ev. sec 1241; supra, sec 198 - 9.

2 Lewis v. Jones, 4 B. & C. 506; Rasbdall v. Ford, L. R. 2 Eq. 750; Hunter v. Walters, L. R. 7 Ch. 75; Russell v. Branham, 8 Blackf. 277; Smither v. Calvert, 44 Ind. 242; Craig v. Hobbs, 44 Ind. 363; Bacon v. Mark-ley, 46 Ind. 116; Clodfelter v. Hulett, 72 Ind. 137; Hawkins v. Hawkins, 50 Cal. 558; Am. Ins. Co. v. Capps, 4 Mo. Ap. 571.

And where an agent claims authority by virtue of his office to do certain acts, the extent of his power being a matter of general law within the knowledge of the party whom he addresses, the former is not liable for an opinion as to his power given to the latter.1 But when a person, claiming either to be a specialist or to represent the opinions of a specialist, misrepresents the law for the purposes of fraud, then he becomes responsible in an action for deceit, if the other party does not rescind.2 This rule has been held to apply in a case in which an old resident, professing to be familiar with land titles, imposed upon an immigrant, just arrived, by a false representation of title.3 And a party to a written contract, claiming to have special knowledge of the meaning of words used in it, is liable for fraud in misrepresenting them to the other party, who was ignorant of their true meaning.4 The same liability is imposed when the false representation is by a party occupying a special position of trust;5 and when a document is surreptitiously substituted for that which the party signing intended to sign, provided no negligence is imputable to him.6