Wightman v. Tucker , 50 Ill. App. 75 ( 1893 )

Opinion of the Court,

Waterman, J.

Appellant concedes that an action can not ordinarily be maintained for false representations as to value, but contends that an exception to this rule exists when the property is at a distance and not conveniently accessible.

The property in this case which was the subject of representations, was at a distance, but was conveniently and easily accessible. Keokuk, Iowa, is about twelve hours’ ride from Chicago, two or three railroad trains per day affording easy access; it seems that over a week elapsed between the making of those representations and = the closing of the deal, within which time there was ample opportunity for appellant to have inspected this stock. Moreover, the goods were to be brought to Chicago and appellant might have stipulated for an opportunity to examine them before delivering his conveyance.

Whatever appellee Craig may have said in negotiating the sale as to his willingness to execute a bond that the goods were worth $6,000, he did nothing of the kind, and when the contract was reduced to writing, no warranty as to value or quality was placed therein, the agreement being that Wiederhold, as agent for the sale of the “ Fair ” stock, agrees to ship the same to appellant, “ said goods to check out as per invoice at least six thousand dollars.” This is a different thing from an agreement that the goods then were or shall be of the value of $6,000. There was no evidence as to what the goods did check out as per invoice.

Appellant’s action is not in disaffirmance of the contract; he does not sue to recover the value of the lots he conveyed, but by his evidence sought to obtain the difference between the claimed representation of value and the actual worth.

The contract of the parties is expressed in the written agreement made.

The only untruthful representation than can be considered as of any consequence was, that it was “ a good stock of goods in good condition;” this was not only an indefinite commendation concerning a matter about which the appellant had ample opportunity for examination (see Miller v. Craig, 39 Ill. 109, and Tuck v. Downing, 76 Ill. 71-97-99), but a matter which the parties thought of so little consequence, that no mention was made of it or of any statement as to value, in the written contract afterward executed; that does contain one, and only one, warranty, viz.: that the goods shall check out-as per invoice, at least, $6,000.

The principle that persons dealing at arm’s length, as these parties were, may puff their commodities to any reasonable extent, and that expressions thus made which are mere matters of opinion, will not afford ground for an action of deceit, not only is applicable to this case, but the circumstances show that the representation upon which reliance was placed was that as to checking out; See Towell v. Gatewood, 2 Scam. 22-25; Schramm v. O’Connor, 98 Ill. 539; Noetting v. Wright, 72 Ill. 390.

It is an essential element of the action for deceit, that the false representation must have been known by the defendant to have been false, or made by him recklessly, that is to say, without reasonable grounds for believing it to be true, or under circumstances which show that he was careless, whether it was in fact true or false. Benjamin on Sales, 390. Nothing of the kind is alleged in the declaration filed in this case.

The statements as to value, quality, what had been loaned on the property, etc., were made by parties dealing at arm’s length, and to those who had ample opportunity for making an examination and ascertaining their truth; followed, as these representations were, by the execution of a written contract, in which was inserted one warranty, and which contract contained no allusion to such statements, we deem them as too indefinite to form the basis of an action of deceit. See Dillman v. Nadlehofer, 119 Ill. 567, and authorities.

Upon the warranty that the goods should check out as per invoice, at least, $6,000, no action has been brought.

Appellant did not make out a case entitling him to a verdict, and the evidence was properly excluded. Judgment affirmed.