7 Utah 433 | Utah | 1891
This suit was brought for the price of optical goods delivered upon the order of the defendant and returned to the plaintiff upon the ground that the order was obtained upon fraudulent representations. It appears from the record that the traveling salesman of the latter, a company located at St. Louis, Mo., and engaged in- the sale of optical instruments, induced the former, a company engaged in selling books, stationery, and toys at Ogden City, Utah, to deliver the order in question upon the following representations: That the plaintiff held a patent for the manufacture and sale of the goods: that it had the exclusive right to manufacture and sell them; that they were far superior to any in the market; and that the prices named in the order were right, and that he would guaranty them to be right. It also appears that the defendant's agents, before making the order, told plaintiff's salesman that they knew nothing about spectacles or their current prices, and it appears that the salesman was an expert in that line of goods, and that he knew the current prices of them; and the
The question presented is, was the defendant authorized to rely upon the representations stated? In other words, were they fraudulent? The statement that the plaintiff held a patent for the manufacture and sale of the goods, and the sole and exclusive right to sell them, and the representation that the price agreed upon was the current price, .were statements of facts by the salesman to the defendant. And the further representation that their quality was greatly superior to any in the market was made by an expert to men who informed him that they knew nothing about that line of goods; and he must have known that the statement was false, and the inference is that he intended that it should be relied upon as inducement to the purchase. The exclusive right of the plaintiff to sell, and that the price agreed upon was the market or current price, and that the quality was greatly superior to any to be had in the market, were material facts to the defendant, who was
It requires special knowledge and skill to discover superior qualities in' optical instruments, and because the salesman possessed that knowledge and skill, and the purchaser did not, the latter had a right to rely on the representations of the former as to quality. 8<Tbe general praise of his own wares by a seller, commonly called ‘puffing,’ for the purpose of enhancing them in the buyer’s estimation, has always been allowed; provided it is kept within reasonable bounds; that is, provided the praise is'general, and the language is not the positive affirmation of a specific fact affecting ■ the quality, so as to be an express warranty, and is not the intentional assertion of a specific and material fact known to the party to be false, so as to be a fraudulent representation. * * * Wherever a party states a mat'ter which might otherwise be only an opinion, and does not state it as the mere expression of his own opinion, but affirms it as an existing fact material to the transaction, so that the other party may reasonably treat it as a fact, and rely and act upon it as such, then the statement clearly becomes an affirmation of fact, within the meaning of the general rule, and may be a fraudulent misrepresentation.’’ 2 .Pom. Eq. Jur. § 818; Pickard v. McCormick, 11 Mich. 68; Simar v. Canaday, 53 N. Y. 298; McClellan