Sec 245

It has been said that a false representation, to impose liability on its maker, must have been calculated to impose on a person of ordinary sagacity. But this limitation cannot be sustained, as persons of less than ordinary sagacity are as much entitled to be sheltered from swindlers as are persons of greater shrewdness.1 Hence, if a party is really imposed upon, and has not in fact negligently exposed himself to imposition, he can obtain redress if damaged by fraudulent representations whose unreality a person of greater intelligence would have promptly discovered.2 But when the facilities of testing the truth of an opinion (e.g., as to coal on land) are equally open to both parties, then, though a misstatement of opinion may preclude the party making it from enforcing the contract,3 yet the contract will not be rescinded on application of the party to whom the misstatement was made.4 And this is the case with regard to the misrepresentation of the legal effect of a deed when the other party has the same opportunity of inspecting the deed as the party making the statement,5 and with regard to other misrepresentations whose accuracy the party imposed on has ample means at the time of testing.6

And must be without immediate means of testing:: contributory negligence.

1 See supra, sec 242.

2 Hammatt v. Mason, 27 Me. 308; Holbrook v. Burt, 22 Pick. 546; though see Taylor v. Guest, 58 N. Y. 262; Taylor v. Fleet, 1 Barb. 471; Hunt v. Moore, 2 Barr, 108; Boyd v. Browne, 6 Barr, 310.

3 Vigers v. Pike, 8 Cl. & F. 650; Clapham v. Shillito, 7 Beav. 149; Aberaman Works v. Wickens, L. R. Ch. Ap. 101; S. C. L. R. 5 Ex. 485; Slaughter v. Gerson, 13 Wal. 379; Warner v. Daniels, 1 Wood. & M. 90; Hoitt v. Holcomb, 32 N. H. 185; Com. v. Norton, 11 Allen, 266; Mooney v.

Miller, 102 Mass. 220; Dickinson v. Lee, 106 Mass. 557; Brown v. Leach, 107 Mass. 367; Long v. Warren, 68 N. Y. 426; Fulton v. Hood, 34 Penn, St. 365; Ely v. Stewart, 2 Md. 408; Wright v. Gully, 28 Ind. 475; Clod-felter v. Hulett, 72 Ind. 137; Saunders v. Hattermann, 2 Ired. 32; Moore v. Turbeville, 2 Bibb, 602; Lythe v. Bird, 3 Jones, N. C. 222; State v. Young, 76 N. C. 258.

4 Whittemore v. Farrington, 76 N. Y. 452; see Lynch v. Rinaldo, 58 How. N. Y. Pr. 133.

1 As to undue influence, see supra, sec 157 et seq.

2 Trower v. Newcome, 3 Meriv. 704; R. v. Wickham, 10 Ad. & E. 34; Fen-ton v. Brown, 14 Ves. 144; R. v. Wool-ley, 1 Den. C. C. 559; R. v. English, 12 Cox C. C. 171; Upton v. Englehart, 3 Dill. 496; Slaughter v. Gerson, 13 Wall. 379; Mead v. Bunn, 32 N. Y. 275; Sherwood v. Salmon, 2 Day, 128 Com. v. Henry, 22 Penn. St. 255; Smither v. Calvert, 44 Ind. 242; Matlock v. Todd, 19 Ind. 130; Swimm v. Bush, 123 Mich. 99; Starkweather v. Benjamin, 32 Mich. 305; Walsh v. Hall, 66 N. C. 233; Roseman v. Cano-van, 43 Cal. 111; Juzan v. Toulmin, 9 Ala. 662; Oswald v. McGehee, 28 Miss. 340; Wannell v. Kem, 57 Mo. 478. That the fact of the falsity of a statement of title could be shown by examining the record does not protect the party making it, see David v. Park, 103 Mass. 501; Upsham v. De-bow, 7 Bush, 442; Bailey v. Smock, 61 Mo. 213; Kiefer v. Rogers, 19 Minn.

32. That the mental inferiority of the person acted on is to be taken into consideration in examining the question whether the fraud caused the contract, see Osmond v. Fitzroy, 3 P.Wms. 130; Farnam v. Brooks, 9 Pick. 212; Seaver v. Phelps, 11 Pick. 304; Grant v. Thompson, 4 Conn. 204; Rice v. Peel, 15 Johns. 303; and see supra, sec 159, 196; infra, sec 259, 572, 753.

3 The Distilled Spirits, 11 Wall. 356; Brown v. Leach, 107 Mass. 364; Fisher v. Worrall, 5 W. & S. 478; Rockafellow v. Baker, 41 Penn. St. 319.

4 Infra, sec 282; Watts v. Cummings, 59 Penn. St. 91; Cummings's App., 67 Penn. St. 404; Lynch's App., 97 Penn. St. 349.

5 Upton v. Englehardt, 3 Dill. 496; Smither v. Calvert, 44 Ind. 242; see supra, sec 198, infra, sec 259, 572, 753, for other cases.

6 Attwood v. Small, 6 C. & F. 232; Mason v. Ditchbourne, 1 M. & R. 460; Vigers v. Pike, 8 Cl. & F. 650; Warner.

But where the vendor's agent took the purchaser to land which was the subject of negotiation, and pointed out to the purchaser, as an inducement to purchase, certain improvements which the vendor knew did not go with the property, he cannot, so it was held in Iowa in 1880, defend himself, when the question of the validity of the sale comes up, on the ground that the purchaser should have made inquiries on his own account.1 And where the plaintiff was induced to buy an estate in another state by representations from the defendant as to the situation of the estate and the character of the improvements on it, the defendant, before execution of the deeds, saying that he had never seen the estate, it was held in Massachusetts in 1880 that the plaintiff was not precluded from recovery, on a suit for deceit, by the fact that he did not visit the estate until after the papers were executed.2 But if it should appear that the party injured assented to the bargain after independent investigations of his own as to the matter falsely represented, then the inference may be that he was influenced, in coming to a conclusion, not. by the misstatement, but by his own observations.3 - This exception does not apply in cases where the party so inquiring is misled in his inquiries by the fraud of the other party,4 or when his v. Daniels, 1 Wood. & M. 90; Tuthill v. Babcock, 2 Wood. & M. 298; Hoitt v. Holcomb, 32 N. H. 202; Veasey v. Doton, 3 Allen, 380; Mooney v. Miller, 102 Mass. 220; Cooper v. Lovering, 106 Mass. 77; Moore v. Turbeville, 2 Bibb, 602; Saunders v. Hatterman, 2 Ired. 32; see infra, sec 259, 753.

In Poland v. Brownell, Sup. Ct. Mass. 1881, it was held that a purchaser cannot maintain an action for deceit in the sale of goods if, having ample opportunity to examine the property, he saw fit to rely upon the statement of the seller concerning the value of the thing sold. Brown v. Castles, 11 Cush. 350; Mooney v. Miller, 102 Mass. 217; Parker v. Moulton, 114 id. 99. And this rule was applied in a case where the goods were exposed, and plaintiff relied on his own judgment and that of a friend. See Gordon v. Parmelee, 2 Allen, 212; Pike v. Fay, 101 Mass. 134. See to same general effect, Schwabacker v. Riddle, 99 111. 343.