Weisman v. Connors

MURPHY, Chief Judge. This case primarily concerns the tort of negligent misrepresentation alleged to have arisen from the factual matrix of an arm’s length negotiation of an employment contract. I In early April 1981 Arthur Connors and Frederick Weisman, who were previously unknown to each other, met for breakfast at Weisman's townhouse in New York City. Connors at that time was a fifty-six year old vice president of Ford Motor Company, one of about forty vice presidents in Ford’s worldwide operations.

A veteran of thirty-two years of service with Ford, he directed a staff of sixty and drew an annual salary of approximately $140,000. In addition, he received many substantial non-salary benefits, including annual bonuses averaging about 62% of his salary, participation in a stock option plan involving 12,000 shares of Ford stock, a special savings plan where Ford matched a percentage of deferred compensation, and a pension plan that permitted him to retire at 60% of salary. Connors was provided by Ford with two company cars; Ford also paid Connors' country club membership and the premiums on a $200,000 life insurance policy. Weisman, a successful entrepreneur, was the sole owner of Frederick Weisman Company (FWC), a holding company whose chief component was Mid-Atlantic Toyota (MAT), a major Toyota distributorship.

The two men met to discuss the possibility of Connors’ working for FWC as executive vice president. This meeting began a chain of events that led to an employment relationship between Connors and Weisman, to the breakdown of that relationship, and finally to a law suit filed by Connors against Weisman and FWC on November 30, 1983 in the Circuit Court for Anne Arundel County. Connors’ complaint contained four counts: (1) ⁴³² breach of a written contract by FWC; (2) breach of an oral contract by Weisman individually; (3) negligent misrepresentation by Weisman and FWC; and (4) fraud by Weisman and FWC. Averments in Connors’ complaint, upon which evidence was adduced at the ensuing four-week jury trial, disclosed that Connors and Weisman had been brought together largely through the efforts of Korn/Ferry, an executive recruiting firm—a “headhunter” agency—employed by Weisman.

Connors testified that he was basically content with his lot at Ford but, enticed by Korn/Ferry’s representations of the executive vice president position at FWC, decided “[i]f single happy, double happy’s got to be better,” and reluctantly agreed to meet with Weisman. A representative of Korn/Ferry, on the other hand, testified that from the very first contact Connors expressed restlessness and discontent with his work at Ford. At that time, Ford was suffering the second of three consecutive years of billion dollar losses, causing among other effects a reduction in Connors’ staff from about 100 in 1977 to 60 in 1981. In a letter Connors wrote to Ford in December 1982 he stated that his decision to leave was made prior to seeking any outside employment and was due to a feeling that because of recent staff and policy changes at Ford he “could hot contribute to the limit of [his] experience.” Connors, however, testified that Ford’s financial woes were not a significant factor in his decision to depart because the company’s planners were confident Ford would return to profitability by 1983 (which in fact occurred).

In his complaint Connors alleged that at the April 1981 breakfast meeting in New York Weisman made a number of representations concerning the executive vice president position and FWC, leading Connors to believe that FWC was on the verge of a significant lateral expansion of its automotive division into related fields such as automobile rental, insurance, and financing; that as executive vice president he would have an equity participation in this expansion and that the value of these ownership interests ⁴³³ would more than offset the benefits which Connors would sacrifice by leaving Ford; that MAT was a stable franchise; that Weisman’s relationship with Robert McCurry, who was then general manager of MAT, was basically amicable though beset with communication problems; and that as executive vice president Connors would have broad executive responsibilities, would report only to Weisman, and would not be required to perform the duties of general manager. Believing these representations, favorably impressed by other aspects of FWC, and finding Weisman to be “an absolutely charming person,” Connors began to give serious thought to accepting the FWC position. Doubts, however, remained, chiefly concerning the substantial non-salary financial benefits Connors would lose by leaving Ford. In mid-April 1981 a second meeting took place, this time in California.

A1 Toffel, a Weisman consultant, was present along with Weisman and Connors. Connors testified that during the two days of this meeting, the earlier representations were reiterated and expanded upon. According to Connors, he repeatedly voiced his concerns about financial loss from leaving Ford, and each time Weisman responded with assurances such as “we’ll handle it,” “that’s not a problem,” “my intent is that you’ll be better off if you join me than if you stayed at Ford.” Salary was not specifically discussed because, Connors testified, salary was for him a secondary consideration: the prospect of equity participation was the real lure. Following the California meeting several telephone conversations occurred between Connors, Toffel, and David Smith, a vice president of Korn/Ferry, as Connors neared commitment on taking the FWC position.

On May 1, Smith sent Connors a letter setting forth the various matters discussed in regard to Connors’ employment and stating that Weisman and Toffel had agreed to them. Included in the letter were some, but not all, of the representations made at the New York and California meetings. Connors showed this letter to his family lawyer, who cautioned that ⁴³⁴ it was “pretty general” and “loose,” especially with respect to equity participation; Connors opined in response that because of the uncertainty attending Weisman’s expansion projects it did not seem possible to express the terms more concretely. The terms in this letter, with a few changes and additions, were incorporated into a three-year employment contract drafted by another attorney employed by Connors.

This contract was executed by both parties on May 5 and Connors began work on June 1. Under the contract’s provisions, FWC agreed to employ Connors as Executive Vice President for a term of three years, commencing June 1, 1981. The contract specified that “it is expected” that Connors would “have broad responsibility for the entire operations of the Company’s Automotive Division, including Mid-Atlantic Toyota,” three other subsidiaries, and “related operations,” with the general managers of these operations reporting to him. The “basic salary” to be received by Connors was $200,000 per year.

Paragraph 8 of the agreement provided for a flat $50,000 bonus at the end of FWC’s current fiscal year and, further, at the end of each subsequent fiscal year, “a bonus to be determined in accordance with a formula to be agreed to between you and the Company prior to the beginning of each such fiscal year. It is anticipated that your bonus target will be $100,000.00 per year. You will also be eligible for consideration of additional merit bonuses, as may be awarded from time to time by the Company in its sole discretion.” Other pertinent provisions in the contract stated: “4. You will have a vested participation in those future ventures of the Company where you will have operating responsibility.

The vested participation for each new venture will be negotiated separately. 5. Two (2) years after the Commencement Date, you and the Company will consider extending the term of your employment for an additional two (2) years upon such terms and conditions as may be mutually agreed upon; if such extension is agreed upon, the term of this ⁴³⁵ agreement shall be five (5) years from the Commencement Date. 7. On or before the Commencement Date, the Company shall purchase, for its own account, 2,300 shares of the common stock of Ford Motor Company. The Company shall forthwith transfer full ownership of such stock to you upon the execution of an extension agreement under paragraph 5 above. 8.

On the Commencement Date, and on each anniversary thereof during the term of your employment, the Company shall pay the insurance premium in connection with a $200,000.00 limited payment, full life insurance policy designed to be paid up in ten (10) equal annual installments. Such life insurance policy shall be owned by you and your assigns and the beneficiary thereof shall be your wife or such other person or persons as you may from time to time designate.” During his first days on the job, Connors discovered that Weisman’s relations with both Toyota Motors (for which MAT was a regional distributor) and McCurry were troubled, and had been for some time. The two problems were interrelated. McCurry, a former Chrysler vice president, highly regarded in the automobile industry for his ability to sell cars, had become general manager of MAT in late 1979, bringing with him a cadre of former Chrysler executives.

At that time (unknown to McCurry) MAT had received official notification from Toyota Motors that its sales performance was unsatisfactory and its franchise might not be renewed. By 1981, under McCurry’s leadership, MAT’S sales had improved so dramatically that it had become the leading regional distributor in America. MAT profits were high. Personal relations between Weisman and McCurry, however, were stormy.

McCurry threatened to quit so frequently that he was deemed to have made a standing offer to resign. Connors put in evidence an unsigned draft letter dated May 29, 1981 (two days before Connors was to begin work), in which Weisman announced McCurry’s resig ⁴³⁶ nation; an earlier letter dated January 7, 1981, made the same announcement. McCurry’s description was that he and Weisman were “totally two different kinds of people.” From Weisman’s perspective, McCurry was arbitrary, arrogant, uncooperative, and disloyal—“not a team player”— who treated Weisman as though he were a mere stockholder. Moreover, Weisman suspected that McCurry was secretly working to obtain the Toyota franchise for himself.

Yet Weisman was in a dilemma. MAT’s franchise agreement with Toyota apparently required Toyota’s approval of the replacement of MAT’s general manager, and McCurry was well liked and highly respected by Toyota’s executives. Also, MAT’s cadre of executives, having been selected by McCurry, was loyal to him, and might leave if McCurry were discharged. According to his testimony, Weisman decided to resolve this dilemma by bringing in a senior automobile executive whom McCurry would respect, interposed between himself and McCurry.

Hence the search that led to Connors. Weisman testified that at the New York and California meetings Connors was fully apprised of the “McCurry problem” and was told that FWC’s lateral expansion was contingent on first resolving this problem. Connors, on the other hand, testified that the McCurry difficulties were sugarcoated as a mere communication problem. Weisman said that he wished to retain McCurry in his organization if at all possible.

Connors’ theory was that Weisman knew or should have known that McCurry’s departure was inevitable and that, as a consequence, Connors would be forced to assume the position of general manager of MAT, a position Connors had made clear he did not want. McCurry’s reaction to Connors’ appointment was very negative. Relations between Weisman and McCurry continued to deteriorate, a fact Weisman attributed to Connors’ failure to alter McCurry’s conduct. In November 1981, over Connors’ objection, and in violation of Weisman’s claimed precontractual representation that Connors alone would decide McCurry’s fate, Weisman required that Con ⁴³⁷ nors dismiss McCurry.

Since no one else acceptable to Toyota was available, Connors assumed McCurry’s duties as MAT’s general manager. A few months later, after receiving their yearly bonus, several other MAT executives also departed. The franchise renewal date was less than a year away, and Weisman and Connors agreed that it was critical to present an image of management stability to Toyota. They also agreed that Connors was to perform MAT’s general manager duties only until a suitable replacement could be found.

The quality of Connors’ performance as general manager was sharply disputed in the testimony at trial; he continued, however, to act as general manager until MAT’s franchise was renewed in August 1982, and then beyond that until he left FWC in August 1983. During this time relations between Connors and Weisman became increasingly acrimonious. Weisman faulted Connors for uninspired leadership and inability to find replacements for McCurry and the other departed MAT executives. Connors presented evidence of MAT’s commendable performance and faulted Weisman for constant negative outlook and harmful interference in MAT’s day-to-day operations.

Connors also presented evidence that Weisman failed to include Connors as an equity participant in an automotive venture organized during Connors’ time at FWC and that he breached other provisions of the employment contract, i.e., that FWC never purchased the $200,000 life insurance policy for Connors, nor did it acquire the 2,300 promised shares of Ford stock. And while Connors received his $50,000 bonus for 1981 as agreed in the contact, he received only $50,000 of his “target” bonus of $100,000 for 1982, pursuant to the provisions of paragraph 3 of the agreement. In the summer of 1983, while Connors was on vacation, Weisman hired one Jack Brown as executive vice president of FWC. A new organization chart was circulated that showed Connors, as general manager of MAT, reporting to Brown.

Regarding this as a constructive discharge, and ⁴³⁸ after consulting an attorney, Connors effectively resigned on September 7, 1983. At the close of Connors’ evidence, Weisman moved to dismiss all counts; the trial court dismissed the oral contract count, and the case went forward on the remaining counts. 1 The jury, following detailed instructions from the presiding judge (Goudy, J.), subsequently brought in a verdict for Connors on the written contract and negligent misrepresentation counts, and for Weisman and FWC on the fraud count. Damages on the contract count were set at $221,900, a figure apparently reached by adding the salary and bonus Connors would have received for the remaining nine months of his three-year contract to the cost of the life insurance and automobiles Weisman allegedly failed to provide. On the negligent misrepresentation count damages were set at $2,705,961, the precise sum requested by Connors’ counsel in closing argument.

This figure represented the present value of all the money and benefits Connors would have received had he remained at Ford from 1981 to 1990 (when Connors would have reached Ford’s mandatory retirement at age 65) minus the salary and benefits Connors actually received at FWC. By agreement of counsel the contract award was subtracted from the negligent misrepresentation award, leaving Connors a net award of $2,484,061. Weisman’s motions for judgment N.O.V. or, in the alternative, for a new trial were denied. On appeal, the Court of Special Appeals affirmed the judgment.

Weisman v. Connors, 69 Md.App. 732 , 519 A.2d 795 (1987). It found no merit in Weisman’s argument that the elements of the tort of negligent misrepresentation had not been established by the evidence. Specifically, the court rejected Weisman’s contention that, absent fraud or the existence of a special relationship between the parties, ⁴³⁹ businessmen who bargain at arm’s length in a commercial transaction do not owe each other a tort duty of care. In this regard, the court said that while the arm’s length nature of the transaction was relevant in determining whether Connors was justified in relying on Weisman’s representations, it did not suffice to withdraw the transaction from the scope of the tort. 69 Md.App. at 746 , 519 A.2d 795 .

The intermediate appellate court next considered Weisman’s argument that (1) his alleged inducements to Connors were merely statements of his current intentions and were not the kind of statements to which the tort applies; (2) that it is not possible to negligently misrepresent one’s own intentions; and (3) there is no such tort as “promissory negligence,” which, at best, was all that was involved in this case. In finding these arguments devoid of merit, the court noted that when the case was submitted to the jury the fraud count was still viable; and that to permit the jury “to consider the fact and context of the various statements allegedly made by Mr. Weisman, including any that may have represented only current intention, was not per se wrongful.” 69 Md.App. at 746 , 519 A.2d 795 . As to the negligent misrepresentation count, the court noted that the jury was instructed “that a statement of intention to do or not to do something in the future could not be regarded as a misrepresentation unless the speaker was actually lying— that it was not actionable merely because the speaker ‘later changes his mind and acts differently____’” Id.. [292 Md.] at 746, 519 A.2d 795 . The court explained: “There were a number of things that Mr. Weisman said and promised that never came to pass.

Four of them, at least, were critical to inducing Mr. Connors to leave Ford and accept employment with FWC: (1) that Connors would have broad executive responsibilities with regard to FWC in all aspects relating to the automobile business; (2) that he would not be simply the general manager of MAT; (3) that FWC would replace the $200,000 life insurance policy paid for by Ford; and (4) that Connors ⁴⁴⁰ would receive equity participation in all new FWC ventures relating to the automobile business, and that the value of those ownership interests would more than offset the pension and other benefits that Connors would forfeit by leaving Ford. “Whatever may be the nature of other statements made by Weisman, those four went beyond mere current intention or expectation. They were statements of fact— what the job would be and what it would pay. For the most part, they found their way into the actual contract and meet in every respect the standards set forth in Martens Chevrolet [v. Seney, 292 Md. 328 , 439 A.2d 534 (1982) ].” Id. [292 Md.] at 746-47, 519 A.2d 795 . As to the damages awarded for Weisman’s negligent misrepresentations, the Court of Special Appeals noted that the jury had been instructed that it could consider “the value of the salary, bonuses, deferred compensation and benefits and other peres Mr. Connors would have earned if he remained at Ford for such time as you find he would have reasonably remained at Ford ... [less] that amount he actually received since leaving Ford.” Id. [292 Md.] at 748, 519 A.2d 795 .

Contrary to Weisman’s arguments, the court held that the instruction was in accordance with Maryland law, being based on the “out-of-pocket” theory of damages that seeks to return the plaintiff economically to the position he was in prior to the tortious transaction. The court said: “To return Mr. Connors to where he was before the transaction requires compensation for all the earnings and other benefits he would have received had he remained at Ford, adjusted to present value and deducting what he actually received from FWC. We see the court’s instructions, then, not as expressing a different theory foreign to Maryland law, but as expressing the theory preferred by our law.” Id. [292 Md.] at 750, 519 A.2d 795 . We granted Weisman’s petition for certiorari to consider several questions relating to whether the evidence sup ⁴⁴¹ ported a negligent misrepresentation cause of action and, if so, whether the jury employed a proper theory of damages in making its award.

II Weisman first contends that the imposition of a tort duty of care for statements made in arm’s length commercial transactions, where there is no risk of physical injury and no “intimate nexus” exists between the parties, represents a departure from settled Maryland law. Arguing that there can be no actionable negligence without a finding that the defendant owed the plaintiff a duty of care, Weisman says that the tort of negligent misrepresentation was not established by the evidence. He maintains that when, as here, the failure to exercise due care creates only a risk of economic loss, an intimate nexus between the parties, i.e., contractual privity or its equivalent, is required as a condition to the imposition of tort liability. No such special relationship or intimate nexus exists in this case, according to Weisman, because both he and Connors were sophisticated businessmen, total strangers to one another, who simply met in preliminary, arm’s length discussions to explore the possibility of negotiating a mutually advantageous employment agreement.

There was no relationship at all, Weisman says, between Connors and himself even remotely resembling contractual privity or its equivalent. Weisman suggests that to impose a duty of care upon him in the circumstances of this case is to create a new tort of promissory negligence for statements of intention or expectation honestly made. As to the four misrepresentations which the Court of Special Appeals said formed the basis for both the fraud and negligent misrepresentation counts, Weisman urges that the court was wrong in holding that they went beyond mere future intentions or expectations and instead constituted statements of fact. On the contrary, Weisman maintains that there can be no negligent misrepresentation unless the statements are of past or present fact.

He states that he did no more than describe ⁴⁴² his expectations as to what the new position would be and what it would pay; that he was thereby relating his expectations of future facts—what the situation would be later in time, after negotiations refined the relationship and after a contractual agreement had been reached; and that in these preliminary, precontractual discussions with Connors, he (Weisman) did not hold himself out to be a neutral and disinterested purveyor of accurate information but was simply attempting to attract an executive to work for him—a fact so understood by Connors who had an opportunity to investigate the position he was seeking. Weisman acknowledges that his statements could have sustained a tort cause of action if the jury had found that he acted fraudulently, i.e., that he did not actually have the expectations or the intentions that he expressed to Connors. As to this, Weisman says that if a person represents an expectation about the future without believing that it will come to pass, viz., promissory fraud, he would be liable for misrepresenting a then existing state of mind. Because the jury in this case concluded that he was' not guilty of fraud, Weisman argues that the jury necessarily determined that he did not lie about his then existing state of mind.

The trial court, according to Weisman, erroneously permitted the jury verdict on the negligent misrepresentation count to stand, as it was not possible for him to negligently misstate the state of his own mind. Weisman explains that if a person harbors the intentions or expectations that he states, he has committed no tort, even if he changes his intentions after the statement or even if events turn out differently than his stated expectancy. Weisman argues that commercial expectations are protected by contract and not negligence law. This means, he says, that a businessman who wants to protect his expectations that promises of intention of another businessman are accurate must negotiate a contract containing these expectations as a contract term.

In this regard, Weisman suggests that the contract between FWC and Connors contained the material terms of their business agreement, and ⁴⁴³ the remedy for the breach of any of them is solely that prescribed by contract law. To add an additional tort remedy for nonfraudulent statements, Weisman says, is both pernicious and duplicative, whether the alleged misstatements are reflected in the contract or not. (A) Elements of Negligent Misrepresentation We first recognized negligent misrepresentation as a tort action separate from deceit in Virginia Dare Stores v. Schuman, 175 Md. 287 , 1 A.2d 897 (1938). In that case the plaintiff, who had been hired to clean the walls of defendant’s store, relied on the assurances of defendant’s manager that a certain dress display case was sturdy enough to support plaintiff’s weight.

The manager was wrong. The display case collapsed when plaintiff stood on it, causing him personal injuries. In allowing recovery for the negligent misrepresentation, we stated the elements of this tort: “[T]he action lies for negligent words, recovery being permitted where one relies on statements of another, negligently volunteering an erroneous opinion, intending that it be acted upon, and knowing that loss or injury are likely to follow if it is acted upon.” 175 Md. at 292 , 1 A.2d 897 . Although duty was not explicitly required as an element of the tort, we said that regardless of whether plaintiff was an invitee or a licensee, defendant “owed him some duty.” Id. [175 Md.] at 291, 1 A.2d 897 .

Virginia Dare involved personal injuries, and when we next considered the tort of negligent misrepresentation in Holt v. Kolker, 189 Md. 636 , 57 A.2d 287 (1948), we limited this cause of action to cases involving personal injuries. 189 Md. at 639 , 57 A.2d 287 . Holt is also notable for its discussion of duty. Adopting the views of Judge Cardozo in Glanzer v. Shepard, 233 N.Y. 236 , 135 N.E. 275 (1922), we held that “there must be such a relation that one party has the right to rely for information upon the other, and the other giving the information owes a duty to give it with ⁴⁴⁴ care.” Id. [189 Md.] at 640, 57 A.2d 287 . In Holt a plumber had assured plaintiff that a second floor porch was safe to walk on; he was wrong, for when plaintiff walked on it she fell through to the ground.

We held the plumber not liable because he was under no duty to plaintiff to accurately represent the condition of the porch. In Brack v. Evans, 230 Md. 548 , 187 A.2d 880 (1963), we discarded the personal injury limitation in negligent misrepresentation actions. The plaintiff there sought recovery of money lost in reliance on misinformation supplied to him by the defendant stockbroker. We held that on these facts the plaintiff had a cause of action.

Thus, the present scope and elements of negligent misrepresentation were basically established. Two decades later, in Martens Chevrolet v. Seney, 292 Md. 328 , 439 A.2d 534 (1982), we reaffirmed the viability of the tort 2 and clarified its elements. Broadening the Virginia Dare elements somewhat and incorporating the duty requirement first mentioned in Holt , we stated these elements as follows: “(1) the defendant, owing a duty of care to the plaintiff, negligently asserts a false statement; (2) the defendant intends that his statement will be acted upon by the plaintiff; (3) the defendant has knowledge that the plaintiff will probably rely on the statement, which, if erroneous, will cause loss or injury; (4) the plaintiff, justifiably, takes action in reliance on the statement; and (5) the plaintiff suffers damage proximately caused by the defendant’s negligence.” 292 Md. at 337 , 439 A.2d 534 . ⁴⁴⁵ Martens, as here, involved an arm’s length transaction. There, the buyer of an automobile dealership brought suit against the seller for allegedly misrepresenting the financial condition of the dealership.

The seller contended that because of the transaction’s arm’s length character, it was subject to no duty of reasonable care in its representations and therefore no claim of negligent misrepresentation could succeed. We flatly rejected this “sweeping” assertion. Id. [292 Md.] at 338 n. 7, 439 A.2d 534 . In Flaherty v. Weinberg, 303 Md. 116 , 492 A.2d 618 (1985), we considered whether a cause of action in negligent misrepresentation could be brought against an attorney by a nonclient plaintiff.

Finding no employment relationship between the attorney and the plaintiff, we concluded that the attorney owed the plaintiff no duty of care. Thus, the first Martens element was not satisfied and no recovery on a negligent misrepresentation theory was possible. In Council of Co-owners v. Whiting-Turner, 308 Md. 18 , 517 A.2d 336 (1986), we found a duty owed by builders and architects to persons foreseeably subjected to the risk of personal injury because of the builders’ or architects’ negligence. Allegations of negligent misrepresentation were advanced in that case, but because of their conclusory nature we were unable to state without qualification that an action for negligent representation would lie.

We did say, however, that if the evidence disclosed misrepresentations “made under circumstances that satisfy the elements of this cause of action ..., the fact that Appellants have suffered only economic loss will not be a bar.” 308 Md. at 41 , 517 A.2d 336 . The opposite results of Flaherty and Whiting-Turner illustrate the decisive importance we have accorded the question of duty in negligent misrepresentation claims. In Jacques v. First Nat’l Bank, 307 Md. 527 , 515 A.2d 756 (1986), we found that a bank that had agreed to process a loan application owed its customer a duty of care in the processing of that application. While Jacques did not involve a negligent misrepresentation claim, we outlined, in general terms, the principal determinants of when a tort ⁴⁴⁶ duty of care will be recognized.

Two major considerations, we stated, are the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. 307 Md. at 534 , 515 A.2d 756 . As to that relationship, we stated at [307 Md.] 534-35, 515 A.2d 756 : “Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability.” As Jacques involved economic loss only, we had to determine whether, in the circumstances, there was an “intimate nexus” between the parties and thus a duty of care by the bank to its customer.

To shed light on the meaning of “intimate nexus,” we there referred to two leading New York decisions involving claims of the existence of tort duties in economic loss cases. In Glanzer v. Shepard, 233 N.Y. 236 , 135 N.E. 275 (1922), the court held that a public weigher of beans owed a duty of care in weighing to the buyer of the beans, although the weigher had been engaged only by the seller. By contrast, in Ultramares Corporation v. Touche, 255 N.Y. 170 , 174 N.E. 441 (1931), the same, court held that public accountants who negligently certified a balance sheet for a corporation owed no duty of care to a factor who, relying on the balance sheet, made loans to the corporation. The court in