273 F. 748 | D.D.C. | 1921
The appellants, husband and wife, brought suit in the Supreme Court of the District to cancel a contract for the sale and purchase of real estate, and for other relief. From a decision against them, they bring the case here for review.
Their bill alleges that by a written contract, dated May 11, 1920, Phillips, as agent, agreed to sell, and they agreed to purchase, a certain piece of real estate located in the District for $8,750; the purchasers to pay part of the consideration in cash, give promissory notes for part secured by a trust deed, and assume trust deeds then on the property. The contract was made “subject to approval of owner.” The same day on which the contract was signed, Phillips O'. K.’d it as owner. The bill further alleges that, on the 18th day of May, Phillips conveyed the property to the appellants, as joint tenants, and took back from them a deed of trust running to the appellees Todd and Michael, as trustees, to secure the payment of promissory notes for $2,700.
About three months thereafter', so the bill says, having ascertained that the representations made by Phillips, both as to agency and value, were wholly false, they offered to rescind all the papers which had passed between them and Phillips, demanded a return of the money which they had paid and the notes which they had given, and offered to re-convey to him the property, but Phillips declined the offer and refused the demand. ■
Phillips moved to dismiss the bill. Pending the disposition of the motion, appellants filed an amended bill, in which they set up that the trustees, Todd, and Michael, had advertised the property for sale under the deed of trust which they had given, and would sell it unless restrained, and that thereby they had committed a contempt of court; that the trustee Michael was prejudiced against the plaintiffs; that Todd was an employee of Phillips; and that the trustees by reason of these facts would not impartially protect the interest of the plaintiffs.
“The rule that no one is liable for an expression of an opinion is applicable only when the opinion stands by itself as a distinct thing. If it is given in bad faith, with knowledge of its untruthfulness, to defraud others, the person • making it is liable.' * * * ” Williams v. State, 77 Ohio St. 468,*751 472, 83 N. E. 802, 803 (14 L. R. A. [N. S.] 1197). See also the eases cited therein.
Usually the mere expression of an opinion relative to value is not regarded as a statement of a fact which, if untrue, could be made the basis of a suit for false representations, unless the person giving the opinion knew at the time it was untrue. If he knew this, he is said to have knowingly misrepresented the condition of his own mind, which condition is a fact. Olston v. Oregon Water Power & Railway Co., 52 Or. 343, 96 Pac. 1095, 97 Pac. 538, 20 L. R. A. (N. S.) 915; Spead v. Tomlinson, 73 N. H. 46, 59 Atl. 376, 68 L. R. A. 432; Montgomery Southern Railway Co. v. Matthews, 77 Ala. 357, 54 Am. Rep. 60; 12 R. C. L. 249.
“Where the means of knowledge are at hand and equally available to both parties, and the subject ol! purchase is alike open to their inspection, if tlie purchaser does not avail himself of these means and opportunities, he will not be heal’d to say that he has been deceived by the vendor’s misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his, own voluntary blindness, and been misled by overconfidence in the statements of another.”
This is approved in Farnsworth v. Duffner, 142 U. S. 43, 47, 12 Sup. Ct. 164, 35 L. Ed. 931. That principle, when applied to this case, is decisive of it. There was no equity in plaintiffs’ bill, and it was rightly dismissed.
Because there is no error in the record, the decree is affirmed, with costs.
Affirmed.