| R.I. | Jan 15, 1897
The burden of establishing fraud, which is to be clearly proved, was on the plaintiffs. We fail to find in the evidence sufficient facts from which to draw a legitimate inference that the assignor had any fraudulent intent at the time of making the statements as to his pecuniary condition, claimed by the plaintiffs to be untrue, and relied on by them to rescind the sale. These statements are to be regarded merely as estimates of the value of his property, and were, so far as appears, honestly made, and specified the property to which the estimates applied. Except in the case of a warranty, an intent to deceive is an essential element of fraud; and unless the estimate is so grossly excessive as to carry with it a legitimate inference of a fraudulent intent, or the intent appears by other testimony, the estimate is a matter of opinion, and, if honestly made, affords no ground for rescission. Morse v. Shaw,
As the case must go back to the Common Pleas Division for a new trial, we will further say that in our opinion the examination of the defendant with reference to his dealings with the assigned estate, which was excepted to, was pressed to an unwarrantable length, and was calculated to prejudice the jury. It should have been confined to the value of the assigned estate in the hands of the defendant at the time of the trial, and to the amount realized by him from the portions sold.
New trial granted and case remitted to the Common Pleas Division.