89 Wis. 602 | Wis. | 1895
The plaintiff’s right to recover is rested upon the falsity of two representations which the defendant is found by the jury to have made respecting the goods which he exchanged with the plaintiff for his farm. These are: (1) That the goods were worth $7,000, and (2) that defendant’s daily sales amounted to from $25 to $100. The jury found that both representations were made and that both were false. The representation of value was sufficiently proved. Whether it was false is not so clear. But it is not material. It was a mere seller’s statement, and furnishes no ground for an action for damages. The value of property is a matter of opinion and judgment, about which men differ. A certain liberty is given the seller in the appraisement of his property. If, having opportunity to examine the property, the purchaser sees fit to rely tipon the seller’s statements, it is his own folly. “ It is settled that the law does not exact good faith from the seller in the vague commendation of his wares, which manifestly are open to differences of opinion, which do not imply undue assertions concerning matters of direct observation, and as to which it has been understood, the world over, that such statements are to be distrusted.” Deming v. Darling, 148 Mass. 504; Poland v. Brownell, 131 Mass. 138; Homer v. Perkins, 124 Mass. 431;
The same rule seems to apply to representations regarding-the amount of current sales, where the buyer has the opportunity to examine the seller’s books. Poland v. Brownell, 131 Mass. 138. It does not appear that the plaintiff had such an opportunity. The representation relates to past facts. It might naturally constitute some element in forming the judgment of the buyer as to the desirableness of the goods' and the expediency of entering upon the new business. It might form the basis of an action for deceit if it was untrue. The burden of proving it to be false is upon the plaintiff. Its falsity cannot be inferred from the fact alone that the plaintiff’s sales were much smaller than the defendant’s represented sales, for it might well happen that the sales of an adept in selling second-hand, misfit goods should many times exceed the sales of one who was ignorant and inexperienced in the business. There was no sufficient evidence that this representation was false. Nor could it be held to be a warranty that the plaintiff could make similar large sales.
The first representation relied on could not be the basis of an action for deceit. The falsity of the second representation was not proved. The motion for a nonsuit should have been granted. The judgment which was entered upon the verdict arrives at substantially the same result.
By the Gourt.— The judgment of the circuit court is affirmed.
