Buschman v. Codd

Robinson, J., delivered the opinion of the Court. This is an action to recover damages, alleged to have been sustained by the plaintiff, by means of false and fraudulent representations, made to him by the defendants, by which he was induced to purchase a half interest in the business of manufacturing artificial marble by letters patent. At the trial below the plaintiff proved that the defendants were engaged in carrying on said business,—that Buschman, one of the defendants, represented that they were doing a fine business and were making money, that they had a contract with St. Vincent’s Church for $3600, one-half of which was profit,—also a large contract at the Capitol at "Washington, and a large contract for work on the new hotels of the Baltimore and Ohio Railroad. That-relying upon such representations he purchased through Buschman the half interest of Cook, the other partner, for the sum of five thousand dollars.

That soon after-wards a person by the name of McAfee, purchased through Cook, the half interest of Buschman for three thousand dollars. That the business was a complete failure, and the representations thus made, and by which the plaintiff was induced to purchase, were utterly false. ²⁰⁷ The plaintiff further proved there was a written agreement between the defendants, whereby in the event of a sale by one of his interest in the business, the other was to have one-half of the money paid, or of the property taken in exchange. The principles of law applicable to cases of this kind were carefully considered in McAleer vs. Horsey, 35 Md., 439 , and it was held, that whenever one makes a false representation, knowing it to be false, with intent to induce another to enter into a contract, which but for such representation he would not have entered into, and the plaintiff has been damnified, a case of fraud is made out, and an action will lie. The representation to be material, must be in respect of an ascertainable fact as distinguishable from a mere matter of opinion.

A representation which merely amounts to a statement of opinion, judgment or expectation, or is vague and indefinite in its nature and terms, or is merely a loose conjectural or exaggerated statement, is not sufficient to support an action. And for the reason, that such indefinite representations ought to put the person to whom they are made, upon the inquiry, and if he chooses to put faith in such statements, and abstained from inquiry, he has no reason to complain. Jennings vs. Broughton, 5 De M. & G., 134; Higgins vs. Samels, 2 John. & Hem., 464; Leyland vs. Illingworth, 2 De F. & J., 248; Haycraft vs. Crease, 2 East, 92; Drysdale vs. Mace, 5 De M. & G., 107; Denton vs. Macneal, L. R., 2 Eq., 352; Kisch vs. The Central Railway Co. of Venezuela, 3 De J. & S., 122. Such then being the law by which this case is to be governed, the defendants certainly have no reason to complain of the several instructions granted by the Court.

In these instructions, the jury were told that to entitle the plaintiff to recover, it was incumbent on him to prove that with a view to induce the plaintiff to make the purchase in question, the defendants represented to him that ²⁰⁸ the business was profitable, valuable and flourishing, and that they had at the time large outstanding contracts for wor-k, that such' representations were false in fact, were made with the fraudulent intent to cheat and deceive the plaintiff; that the plaintiff had not at hand the means of verifying or ascertaining the truth of such representations ; that in making such purchase, he relied on such representations and would not have made it except upon the faith of the same, and that in consequence thereof he was misled and injured. These instructions covered the whole law of the case. In fact it may be questionable whether the plaintiff under the circumstances of this case was obliged in any manner to make inquiry in regard to the truth of the representations. In Vernon vs. Keys, 12 East, 632, the rule was stated to be, that the seller was liable in an action of deceit, if he fraudulently misrepresent the quality of the thing sold, in some particular which the buyer has not equal means of knowledge with himself, or if he do so in such a manner as to induce the buyer to forbear making the inquiries, which for his own security and advantage he would otherwise have made.

Where the real quality of the thing is an