defrauded may show that he was ignorant, by reason of his calling, character, and associations, of the matter to which the contract related.751 In an instructive case of this character, it appeared that a person claiming to be a physician told a rustic, who was entirely inexperienced in the symptoms and effects of diseases, that her nephew was suffering from a valvular disease of the heart which was liable to terminate his life at any time, and that he could cure it, and demanded a sum of money for effecting such cure. All this being false, it was held that the pretended physician was guilty of an attempt to obtain money by false pretenses.752 Again, a complaint is good on demurrer which alleges that a banker, expert in making computations, in settling a complicated account with one who was incapable of making such computations for himself, falsely and fraudulently made out an indebtedness to himself of a much larger sum than was really due, and thereby obtained payment of the larger sum, knowing that the other relied upon his computation.758 And the same rule was applied in a case where the seller was an oil land promoter, and had been engaged in the oil land business for a long time, while the purchaser was entirely without knowledge of the subject.754 So again, "a jeweler or a diamond merchant, who deals in diamonds and precious stones, has better means of knowing the nature and quality of the stones he sells than an unskilled stranger who comes to his shop to buy them. If, therefore, he represents a glittering stone to be a diamond, he impliedly warrants his knowledge of the truth of his representation. His statement amounts to a warranty of the fact to a purchaser, and the jeweler is responsible if the stone turns out to be only a piece of crystal, whether he knew the representation to be true or false." 755 There is

Salisbury Realty & Ins. Co., 159 N. C. 230, 74 S. E. 736; Lane v. Town of Harmony, 112 Me. 25, 90 Atl. 546, Ann. Cas. 1915C, 874.

751 Albright v. Corley, 40 Tex. 105; Muck v. Hayden, 173 Mo. App. 27, 155 S. W. 889; Couch v. O'Brien, 41 Okl. 76, 136 Pac. 1088. 752 People v. Arberry, 13 Cal. App. 749, 114 Pac. 411.

753 Worley v. Moore, 77 Ind. 567.

754 Brandt v. Krogh, 14 Cal. App. 39, 111 Pac. 275.

755 2 Add. Torts (Wood's edn.) § 1184. And see Picard v. McCormick, 11 Mich. 68.

also a special rule where the vendor of an article is also the manufacturer of it. "The manufacturer of an article has superior means of information as to the nature and quality of the article he makes than a stranger not engaged in the manufacture. If, therefore, he represents the article he makes to be of some superior or peculiar quality, or to be fit for some particular purpose, in order to recommend it to a purchaser, his representation amounts to a warranty of the fact," 756 and the purchaser, making his purchase on the strength of such representations, and finding himself deceived and misled, may repudiate the sale, although he made no special effort to determine the truth in advance.757

§ 121. Party Relying on His Own Investigation.— Where false and fraudulent representations are made concerning the subject-matter of a contract, but the person to whom they are made, before closing the contract (or before the time for payment arrives) inspects and examines the subject of the contract, or conducts an independent investigation into the matters covered by the representations, which is sufficient to inform him of the truth, and which is not interfered with or rendered nugatory by any act of the other party, it is presumed that he places his reliance on the information acquired by such investigation and on his own judgment based on such facts, and not on the representations made to him, and therefore he cannot have relief because his bargain proves unsatisfactory to him.758 Thus,

756 2 Add. Torts (Wood's edn.) § 1191.

757 Jones v. Bright, 3 Moore & P. 174; Joslyn v. Cadillac Automobile Co., 177 Fed. 863, 101 C. C. A. 77; Watson v. Brown, 113 Iowa, 308, 85 N. W. 28.

758 Curran v. Smith, 149 Fed. 945, 81 C. C. A. 537; Mather v. Barnes (C. C.) 146 Fed. 1000; Pittsburg Life & Trust Co. v. Northern Cent. Life Ins. Co. (C. C.) 140 Fed. 888; Smith & Benham v. Curran & Hussey (C. C.) 138 Fed. 150; Brown v. Smith (C. C.) 109 Fed. 26; Graybill v. Drennen, 150 Ala. 227, 43 South. 568; Dooley v. Burlington Gold Min. Co., 12 Ariz. 332, 100 Pac. 797; Delolme v. State Sav. Bank, 113 Ark. 599, 169 S. W. 229; Wright v. Boltz, 87 Ark. 567, 113 S. W. 201; Williams v. Mitchell, 87 Cal. 532, 26 Pac. 632; Gratz v. Schuler, 25 Cal. App. 117, 142 Pac. 899; Stephens v. Orman, 10 Fla. 9; Hirschman v. O'Hara & Russell Co., 59 Fla. 517, 51 South. 550; Hess v. Young, 59 Ind. 379; Hayslip v. Fields, 142 Ga. 49, 82 S. E. 441; Kline v. Kennedy, 150 Ky. 729, 150 S. W. 998;

false representations on the sale or lease of a mining property, with regard to its value, the amount of ore in sight, its richness, or similar matters, afford no ground for rescission. where the purchaser or lessee, instead of relying on what was told him, visited the mine for the purpose of informing. himself and exercising his own judgment, or took possession of the property and worked it for a sufficient time to form a correct opinion for himself.759 So, where the purchaser of a brokerage business examined the vendor's books before closing the trade, to see what the business was worth, he cannot defend against his note for the purchase price on the ground that the plaintiff overstated the value of the business in conversation with him.760 And for the same reason, "representations and assertions of title by a vendor of real property, where the title deeds are submitted to the inspection of the purchaser, who exercises his own or such other judgment as he confides in on the goodness of the title, amount only to expressions of opinion and belief, and cannot be treated as a warranty." 781 Again, mis

Sohan v. Gibson, 118 Ky. 403, 80 S. W. 1173; Frank v. Lacey, 3 Ky. Law Rep. 335; Ross v. Bolte, 165 Iowa, 499, 146 N. W. 31; Bowen v. Walton, 142 Ky. 509, 134 S. W. 885; Latrobe v. Dietrich, 114 Md. 8, 78 Atl. 983; Allison v. Ward, 63 Mich. 128, 29 N. W. 528; Redfield v. Engel, 171 Mich. 207, 137 N. W. 60; Meland v. Youngberg, 124 Minn. 446, 145 N. W. 167, Ann. Cas. 1915B, 775; Younger v. Hoge, 211 Mo. 444, 111 S. W. 20, 18 L. R. A. (N. S.) 94; Grinrod v. Anglo-American Bond Co., 34 Mont. 169, 85 Pac. 891; T. C. Power & Bro. v. Turner, 37 Mont. 521, 97 Pac. 950; Bliven v. Robinson, 83 Hun, 208, 31 N. Y. Supp. 662; Gisel v. City of Buffalo, 15 N. Y. St. Rep. 561; Gordon v. Manhattan Desk Co. (Sup.) 123 N. Y. Supp. 57; Scott v. Walton, 32 Or. 460, 52 Pac. 180; Kreamer v. Smith, 187 Pa. 209, 41 Atl. 43; Cole v. Carter, 22 Tex. Civ. App. 457, 54 S. W. 914; Peck v. Morgan (Tex. Civ. App.) 156 S. W. 917; Luckenbach v. Thomas (Tex. Civ. App.) 166 S. W. 99; Zavala Land & Water Co. v. Tolbert (Tex. Civ. App.) 165 S. W. 28; Hulet v. Achey, 39 Wash. 91, 80 Pac. 1105; Harris v. Stewart, 72 Wash. 661, 131 Pac. 212; Ludington v. Renick, 7 W. Va. 273. Compare Tooker v. Alston, 159 Fed. 599, 86 C. C. A. 425, 16 L. R. A. (N. S.) 818; Hennessey v. Damourette, 15 Colo. App. 354, 62 Pac. 229.

759 Winter v. Bostwick (C. C.) 172 Fed. 285; Irby v. Tilsley, 41 Wash. 211, 83 Pac. 97; Weist v. Grant, 71 Pa. 95; Pike v. Vigers, 2 Dru. & Wal. 1; Whiting v. Hill, 23 Mich. 399. Compare Perkins v. Rice, Litt. Sel. Cas. (Ky.) 218, 12 Am. Dec. 298.

760 Stocks v. Scott, 89 Ill. App. 615.

761 2 Add. Torts (Wood's edn.) § 1189. See Lee v. Haile, 51 Tex.

representations by a vendor of real estate with reference to its area are not actionable when a correct description of the property is given in the deed and in the recorded chain of title, which the purchaser's agent undertook to investigate and report upon, and the vendor made no effort to prevent a full investigation.762 So, the purchaser cannot complain of a misrepresentation as to the quantity of cleared land on the premises, where he himself had opportunity to judge, and ample means within his reach to form a correct estimate, and appears to have relied on his own judgment.763 The same rule applies where the purchaser of an implement or piece of machinery tested its capacity or utility before binding himself to its purchase.764

It is not necessary to the application of this rule that the party in question should have made the investigation in person. The same result follows if he employs a third person, in whom he has confidence, to make the test or examination, and receives his report and relies on it,765 as where a person purchases a tax title to lands on the advice of his attorney, whom he employs to investigate the public records, and who makes an extended search,766 or where, before concluding the bargain, he has an examination made by an expert skilled in the particular business or process to which the subject-matter relates.767

As to the nature and extent of the investigation necessary to charge a party with knowledge of the facts, and prevent him from claiming relief on the ground of false representations, it has been said that one who undertakes to discover the truth of representations made to him is chargeable with knowledge of everything which a proper investigation would

Civ. App. 632, 114 S. W. 403; Fordtran v. Cunningham (Tex. Civ. App.) 177 S. W. 212.

762 Shappirio v. Goldberg, 192 U. S. 232, 24 Sup. Ct. 259, 48 L. Ed. 419.

763 Port v. Williams, 6 Ind. 219.

764 Arnold v. Norfolk & N. B. Hosiery Co., 148 N. Y. 392, 42 N. E. 980; American Harrow Co. v. Martin (Ky.) 36 S. W. 178.

765 Palmer v. Shields, 71 Wash. 463, 128 Pac. 1051.

766 Farnsworth v. Duffner, 142 U. S. 43, 12 Sup. Ct. 164, 35 L. Ed. 931.

767 Smith v. Fowler, 7 Ky. Law Rep. 230; Mitchell Mining Co. v. Hammons, 12 Ariz. 300, 100 Pac. 795.

disclose. But the better opinion appears to be that a partial or limited examination of the subject-matter makes him responsible only for knowledge of what that examination. actually discloses, and does not legally prevent him from relying on representations covering a wider range.769 And one who concludes a contract on the basis of representations made to him, which are false in fact, is not barred of relief by the mere fact that he sought and obtained other information on the same subject, where that information did not disclose the falsity of the representations.770 Again, an independent investigation counts for nothing as against false representations, where the person making the investigation could learn nothing profitable from it because he lacked the necessary skill, experience, or specialized knowledge. This is the case, for instance, where the subject of the contract is a machine, and the party claiming to have been defrauded inspected and examined it, but was not sufficiently familiar with machinery to judge its capacity or discover its defects. So, the fact that the buyer of a diamond, not being an expert in gems, made a careful examination of it before buying it, does not signify that he did not buy in reliance on the representations of the seller.772 And where the question concerns a title to real estate, the fact that the purchaser studied an abstract of title furnished to him does. not prevent him from obtaining relief against the misrepresentations of the vendor, where, on account of his ignorance of land titles, he was unable to determine the sufficiency of the title from the abstract.773 On the other hand, though a thorough comprehension of the subject of the contract may require special knowledge or skill, yet an unskilled person

771

768 Newman v. Lyman (Tex. Civ. App.) 165 S. W. 136. Compare Light v. Jacobs, 183 Mass. 206, 66 N. E. 799.

769 City of Tacoma v. Tacoma Light & Water Co., 17 Wash. 458, 50 Pac. 55.

770 Olcott v. Bolton, 50 Neb. 779, 70 N. W. 366; Lamb v. Levy, 77 Wash. 511, 137 Pac. 1024.

771 Crutcher v. Schick, 10 Tex. Civ. App. 676, 32 S. W. 75; Watson v. Brown, 113 Iowa, 308, 85 N. W. 28.

772 Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585, 34 L. R. A. (N. S.) 1147.

773 Buchanan v. Burnett, 52 Tex. Civ. App. 68, 114 S. W. 406.