Plaintiffs, husband and wife, with a family of six children, resided on a farm of 120 acres in Fulton County, Illinois. Eighty acres of it belonged to Margaret and forty stood in the names of Margaret and George jointly as baron and femme. This little farm, with a modest outfit of farm implements, stock and household goods, was their all. In that regard Nathan’s one ewe-lamb allegory is apposite. Their farm will be called the Illinois farm. They seem to belong to a class that should be well beloved (because, as a great soul once suggested, God had made so many of them), viz., straightforward, simpleminded, hard-working, trustful and confiding people, members of the church and alive to ethical work, including temperance. (The moral of which lies" further on. Of which more presently, anent Head himself.) Their farm, improved and productive, was well worth $60 per acre cash. It was encumbered for $2800 and George got it into his head that a larger farm could be profitably worked while he had his large family in hand, thereby making hay while the sun shone. Old Polybius says, sourly, “Man is the most gullible of'all animals.” Be that so or not so, it seems these plaintiffs were little versed in the guileful ways of traders.
Thirty miles away in the same county, and a stranger to them, was a man who (on this record) seemingly lived by his wits, a trader and real estate agent named Head, who had got on in the world as such. Among others, he owned a farm of 236 acres
In January, 1908, Head traded his Missouri farm to plaintiffs for their Illinois farm, putting the title in plaintiffs jointly, each party to the trade assuming the other’s original encumbrance. Plaintiffs, as said, put in their land at its true cash value, to-wit, $60 per acre (which Head knew) and Head put his in at the claimed (but simulated) value of $60 per acre (which Head knew they did not know) and took a note and deed of trust by way of boot for $6288, evidenced by a
Shortly, plaintiffs broke up their home in Illinois, moved to Missouri and took possession of their new purchase. Shortly, Plead sold the Illinois farm for $65 per acre.
(Note: There is some evidence from which it might be inferred that Head was fleeced when he traded for the Missouri farm several years before, hut it is not contended by counsel that such fact, if fact it he, justified him in turning about and in turn fleecing plaintiffs. Such application of the doctrine of the Squib case whereby one passes a bad trade on to another, an innocent party, as the hoy in the Squib case tossed on the burning squib [Scott, an infant, v. Shepherd, an infant, 2 Blackstone’s Rep. 892] would he novel indeed. That A, bitten by B, may by that token in turn hite C, in a like way by the same device, is a doctrine unknown to this court.)
In the late summer of 1908, plaintiffs sued in equity to cancel said deed of trust and note and for damages. This on the thory that the trade was made on the strength of false representations by Head as inducements thereto and relied upon by them; that they had been the victims of an arrant swindle whereby they were tricked out of their farm and were entitled to relief in equity to that extent.
From a decree cancelling the note and deed of trust and awarding them $2400 in money damages, Head appeals, raising two general questions for decision, viz: (1) Does the petition'state facts sufficient to constitute a cause of action? (2) Does the evidence support the decree? ■
Other facts will appear'in connection with the discussion of those questions.
I. Of the petition.
On such record the demurrer is not entitled to as favorable consideration as if it had been timely filed and the sufficiency of the petition had been challenged in limine.
That there were some considerations in the nature of equities springing from so belated a challenge to the petition, to be reckoned with in the practical administration of. justice, is apparent, and courts are fond of remarking on them. When the answer was filed and remained on file for nearly a year it was equivalent to a notice that defendant challenged the' facts, not the sufficiency of the petition to state a cause of action. That is, it was tantamount to a formal standing notice that defendant considered the petition good, that he raised no issue of law on its allegations, but put the facts in issue and evoked the law applicable to those facts when established at the trial. On that theory testimony was taken, delay occurred, witnesses were summoned and expense incurred, all preparatory to a trial on the merits.
Related logically to the observations just made are others, viz.: A litigant, by motion to make more specific, definite and certain those allegations enumerated in his motion which are indefinite, uncertain, obscure, equivocal or otherwise lacking in precision, may have relief. He is entitled to have the issues sharply defined and thereby know to a moral certainty the scope and character of the charges made against him. This, in order to meet them. Such motion is a useful expedient of every day use, nisi, to coerce good pleading, that is, “good matter pleaded in good form, in apt time and due order.” [Coke Litt. 303a.] .
Now, this defendant filed no such motion and may not under the guise of a general demurrer complain of the petition in such particulars. It may be granted, arguendo, that the petition, somewhat loosely and in-artificially drawn, was subject to such motion on some of its averments, but, absent such motion, the proof
(b) Recurring to the main question (to-wit, does the petition state facts sufficient to constitute a cause of action?) we will not swell this opinion by reproducing the petition. It divides itself naturally into two parts. In one, complaint is made of alleged misrepresentations of value. In the other, complaint is made of alleged misrepresentations of matters of fact relating to a comparison of the Missouri farm with the Illinois farm; misrepresentations on productiveness, rental value, soil, conditions, etc.
Defendant is entitled to the rule that while his demurrer admits the truth of averments of substantive fact, it does not admit facts not well pleaded, or impossible or absurd averments, or the soundness of mere conclusions of law, or the mere conclusions of the pleader upon the facts constitutive of his cause of. action, or mere argumentative matter. Giving defendant the benefit of that rule, yet we conclude (the premises all considered) that the ruling on the demurrer was well enough; and this whether we consider it here technically as a ruling on the demurrer itself or a ruling on the sufficiency of the petition to state a cause of action, a point open, without a demurrer at all, to be heard on appeal. [Hudson v. Cahoon, 193 Mo. 547.]
II. Of the merits.
“Stole the livery of the court of Heaven to serve the devil in,”
to use the strong words of a gloomy writer, thereby weaving a net for his neighbor’s feet. Presently dinner was announced and Head, having prior to that by the tone and thread of his ■ discourse admitted his qualifications for that pious office, was invited to say grace. Looking fore and aft at the whole transaction we have reason to remark that no doubt he said it as unctiously as the middle member of the firm of Quirk, Gammon and Snap would have done under like circumstances. For what is the rule of construction on hypocrisy, except, By their fruits ye shall know them? Having eaten salt at their table (which creates an obligation even the Arabs of the desert are said to respect) he assured them, on being anxiously pressed on his statements of fact about the farm, that he “would not tell a lie for his farm” or “for the world.” Oh, Deceit! (we speak in judicial sadness) thy name is Head. It is under such circumstances, and after worming his way into the esteem and sowing seeds of confidence in the bosoms of these unsuspecting people, that this trade was made on Head’s representations. There is no call to mince words and speak daintily. The case calls for plain speaking and I pause long enough to say this in passing: It is said that one of the names of the Evil One is that of the Father of Lies. In sacred annals there is preserved an incident of an evil spirit, possibly said Father of Lies (but for this latter I do not vouch) entering into a herd of swine, whereat the hogs destroyed themselves by rushing violently down a steep place. So, Head, because of an evil spirit that possessed him and caused mis
It will be of judicial interest to know upon what ground his learned counsel seek to reverse that decree. It runs this way: In the first place, as to the representations on value, Head seeks to escape through the loophole that such representations (if made), although false, are not actionable. (Of which more presently.)
In the next place, other representations are of no avail or substance, it is argued, because mere opinions, or, if not that, then mere commendations. In other words, they fall (as we construe the argument) within what the books designate as “dealers’ talk,” “trade talk,” “puffing,” “vague laudatory flourishes,” and come within the maxim, Simplex commendatio non obligat; or the doctrine of caveat emptor.
In the next place it is argued that plaintiffs did not put reliance on Head’s representations but investigated for themselves and traded on their own judgments.
We have read this record line upon line and find no soundness in any of those contentions. This, because :
(a) As to non-reliance and the so-called independent investigations of plaintiffs.
It seems that at a certain time George Stonemets met up with Head and was introduced to him as a real estate agent. The topic of Stonemets’s desire to change his location came up and Head at once sug gested a trade. Mrs. Stonemets was not present, the conversation happening in town and casually. We do
Going, back a little, in the original talk Head disclosed that adjoining the Missouri farm was that of a former Illinois farmer named “Wes” Duvall. Now, unfortunately for him, Stonemets had known Duvall slightly a generation before as a resident of his county in Illinois. When this fact appeared, Head suggested that he go and look at the farm and referred him to Duvall. There is testimony that Mr. Head said he would stand by, or “guarantee,” anything Duvall said. As to Duvall, it is shown that he and Head were friendly. He had lived one winter with Head on the Missouri farm, was under some obligations to him and Head used him in one or more occasions in showing his farm to would-be purchasers. Duvall and Head deny corresponding about the proposed visit of Stonemets, but as they corresponded about some other purchasers, who proposed to visit the farm, it may he the chancellor took that denial cum grano sails, especially would he be presumed to know his man, since it is unlikely that Head would refer Stonemets' to a man with an itch to throw cold water on a sale.
Taking up again the thread of the story, on going to Mexico, Stonemets inquired for Duvall and, learn
There was testimony that Mrs. Stonemets was opposed to the trade and stated she had no confidence in her husband’s judgment, based, as it was, on a casual and short visit in the winter time to a new country and the slight information he had obtained by inadequate observation and inquiry.
In this connection, there was an incident of some significance, of this sort: A Mr. Smith who was judge of the county court of Audrain county, and a man of excellent judgment and repute, resided close to this land and Mr. Stonemets in his trip met up with him in inquiring for Duvall. He asked him about the
At root the object of all trading is gain. If no gain was allowed there would be no incentive to exchange of properties and little buying or selling. But •when so much has been said, and it is further said that the doctrine of “let the buyer beware” must be reckoned with and that simple general commendation is allowable as puffing and dealers’ talk, yet there is a boundary that may not be crossed. The. vehemence of the master passion, gain, must be cooled and curbed by the law; for not only is “the love of money the root vJ all evil” (1 Tim. VI:10), but another wise man, who summed up ultimate truths in grave and short sentences, saith thu«- “ A ^ +be nail sticketh fast between the joinings of the stones, so doth sin stick close between buying and selling.” [Ecclessiasticus XXVII: 2.] The low «q-Vhors fraud — a thing that generally has its root in falsehood, the suggestio falsi.
The right general doctrine is that where parties, without knowledg’e of their own, or without ready means of knowledge (as for example, when they reside a distance away) buying on reliance on misrepresentations of material facts, known to be false by the party making them and intentionally made to deceive, as here (or made recklessly without knowledge of their truth or falsity) and who have been thereby deceived and defrauded to their injury, are granted relief. Agreeable thereto are all the authorities. We cite a sample of the cases and pass on. [Kendrick v. Ryus, 225 Mo. 150; Judd v. Walker, 215 Mo. 312; Adams v. Barber, 157 Mo. App. 370; McBeth v. Craddock, 28
The facts bring the case within the foregoing doctrine and onr conclusion is that, aside from representations of value, plaintiffs made a case of fraud, deceit and consequent damages warranting the relief granted.
(b) Of representations of value. The case may proceed on the theory that Head represented his farm to be actually worth $60 per acre, and that plaintiffs relied, also, on that false representation as a causal factor in the trade. In that view of it, need the case rest alone on representations of fact aside from value?
' The state of adjudicated cases in this State and elsewhere is such that the question whether fraudulent representations on value can ever be actionable, is not without some difficulty. To that, question we pass.
Now, there is a general doctrine of the law that ordinarily statement of opinion is not the statement of a fact; and, since a false representation to be actionable must be that of a fact, a mere opinion (as for
Pomeroy cautiously states acceptable doctrine on this head. Speaking of misrepresentations of matters of opinion, he says [2 Pom. Eq. Juris. (3 Ed.), sec. .878]:
“Since the very corner-stone of the doctrine is that the statement must be an affirmation of a fact, it has sometimes been said, but very incorrectly, that a misrepresentation cannot be made of a matter of opinion. The true rule is, that a fraudulent misrepresentation cannot itself be the mere expression of an opinion held by the party making it. The reason is very simple; while the person addressed has a right to rely on any assertion of a fact, he has no right to rely upon the mere expression of an opinion held by the party addressing him, in whatever language such expression be made; he is assumed to be equally able to form his own opinion, and to come to a correct judgment in respect to the matter, as the party with whom he is dealing, and cannot justly claim, therefore, to have been misled by the opinion, however erroneous it may have been. For this reason, the 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 limits; that is, provided the*265 praise is general, and the language is not the positive affirmation of a specific fact affecting the quality, so as to he 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 misrepresentation. The foregoing rule as to expressions of opinions cannot be pushed beyond the plain reasons upon which it rests. Wherever the statement, although relating to matter of opinion, is the affirmation of a fact, it may be a fraudulent representation. Such an affirmation might be made in several forms. The very fact concerning which the statement is made may be the existence of an opinion. The existence of an opinion may be a fact material to the proposed transaction, and a statement that such an opinion exists becomes an affirmation of a material fact, and if untrue, it is a misrepresentation. The opinion might either be represented as held by a third person or as held by the very party making the statement. As a single illustration, either the third person or the party himself might be an expert, and their opinion might be material, so that the representation that the opinion was held might be the affirmation of a most material fact. There is still another and perhaps more common form of such misrepresentation. Wherever a party states a matter, 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. The statements which most frequently come within this branch of the rule are those concerning value.”
In a learned note to that section, copying copiously from an English case (Haygarth v. Wearing, L. E. 12 Eq. 319) that author continues:
*266 “It cannot be-denied that there is apparently a direct conflict of decision upon the effect of representations concerning value. The distinctions drawn in the text seem to me to be in perfect accordance with principle, and to be just and practical, and they will tend to remove most of the conflict, which is apparent rather than real. Statements of value are sometimes nothing more than the expression of the party’s own opinion, and there is a group of decisions in which they are so treated. On the other hand, statements of value may be affirmations of a specific material fact, and there is a group of decisions in which they are so treated, and held to be fraudulent, misrepresentations. There is no necessary conflict between these two groups of decisions, although the language of the judicial opinions has. not always recognized and preserved the distinction between the two forms.”
The text quoted is a just summary of the doctrines of many cases cited and quoted from in the note.
In Stebbins v. Eddy, decided by Judge Story (4 Mason, l. c. 423), is an observation in point:
“It has been suggested at the bar, that fraud cannot be predicated of belief, but only of facts. But this distinction is quite too subtle and refined. The affirmation of belief is an affirmation óf a fact, that is, of the fact of belief; and if it is fraudulently made to mislead or cheat another, to abuse his confidence, or to blind his judgment, it is in law and morals just as reprehensible, as if any other fact were affirmed for the like purpose. The law looks, not to the nature of the fact averred, but to the object and design of the affirmation. ’ ’
In speaking of facts difficult of ascertainment by the purchaser it is stated in 20 Cyc. 58 that:
“ . . . it is generally held that where the property involved is situated at a distant place and thus an inspection cannot be made without expense and*267 inconvenience, and the prospective purchaser is ignorant of the facts, he may rely on the vendor’s positive statements regarding the property and may hold him liable if they are false and fraudulent, even though they are representations of the value, quality, and condition of the property; and the fact that the vendor himself has never seen the property and so informs the purchaser is not a conclusive answer to the action.”
In Smith on the Law of Fraud, sec. 68, the doctrine is put in this way:
“Statements as to value of property are, with but few exceptions, to be classed as mere opinions upon which reliance must not be placed and are not actionable. Where two persons are in treaty about the sale of any article of property — a painting for example — and both have equal means of knowing its value and its merits as a work .of art, where neither is an artist or connoisseur and both are ignorant, of its history, and the painting is present and open to the inspection of both, a mistaken opinion as to the value or character of the property would not invalidate the sale, because in such case the purchaser cannot be presumed to have acted upon the opinion or to have placed any reliance or trust in it but is presumed to have acted on the counsels of his own judgment. This would not be the t-nV however, where the seller is himself an artist, or his means of knowing the character of the property are better than those of the buyer, for the reason that in this case they do not meet on equal terms. In such case the presumption is shifted and the buyer is presumed to have acted on the superior knowledge of the seller.” '
Further on (section 69) it is said than an exception to the rule that an opinion is not fraudulent arises where the vendor has peculiar means of knowledge which the vendee does not possess. Continuing he says: “The expression of an opinion by the ven
Applying the foregoing general pronouncements it will be found that courts generally recognize that where parties do not stand on an equal footing of opportunity and knowledge, a positive assertion of a matter, which, stated in another form, might be a .mere opinion, may when false and fraudulent be actionable if the . statement was a material inducement to the trade or sale. So, a statement of an opinion under like circumstances when in fact the party has no such opinion, or has a contrary opinion, may become a statement of a material fact, to-wit, the fact that an opinion exists. Take a case: Suppose A, an experienced judge of weights of cattle, tells B, an inexperienced purchaser, that his cattle in his opinion weigh a thousand pounds each when in fact A has weighed them the day before and knew to a certainty they only weighed seven hundred pounds each' — -if relied on, would not that false opinion be actionable if it produced a sale? So, there are cases where special confidence and trust are reposed, or where an opinion is asked for and given with the understanding it will be relied on, when falsely given and an injury results the one who reaps the benefit of the fraud may be mulcted in damages. So, if A to consummate a sale or trade refers B to C for his opinion and C’s false opinion is given to B as the result of a fraudulent conspiracy or a covinous contrivance between A and C, an action may arise. And broadly where the thing (say, value) about which an opinion is expressed by a party to a trade lies at a distance and special confidence is reposed by one who is without knowledge, a false opinion expressed by the other party to the
For example: Scott v. Burnight, 131 Iowa, 507; McKnight v. Thompson, 39 Neb. 752; Cressler v. Rees, 27 Neb. 515; Miner v. Medbury, 6 Wis. 295; Morgan v. Dinges, 23 Neb. 271; Loaiza v. Court, 85 Cal. 11; Crandall v. Parks, 152 Cal. 772; Borders v. Kattleman, 142 Ill. 96; Murray v. Tolman, 162 Ill. 417; Kenner v. Harding, 85 Ill. 264; White v. Sutherland, 64 Ill. 181; Gordon v. Butler, 105 U. S. 553; Brown v. Mining Co., 194 Mo. 681; Jackson v. Collins, 39 Mich. 557; Picard v. McCormick, 11 Mich. 68; Collins v. Jackson, 54 Mich. 186; Wright v. Wright, 37 Mich. 55; Smith v. Property Corporation, L. E. 28 Ch. 7; Hay garth v. Wearing, L. E. 12 Eq. 319 (cited with approval by Pomeroy, supra); Cahn v. Reid, 18 Mo. App. 115; Hoffman v. Gill, 102 Mo. App. 320; Stones v. Richmond, 21 Mo. App. 17; Brownlee v. Hewitt, 1 Mo. App. 360; Chase v. Rusk, 90 Mo. App. 25; Hamlin v. Abell, 120 Mo. 188.
Hnder the peculiar facts of this case we are not prepared to say it was error to introduce testimony upon representations of value made by defendant, or error to consider those representations in aid of the decree.
It is so ordered.