Suessenguth v. Bingenheimer , 40 Wis. 370 ( 1876 )

Cole, J.

The only ground for rescinding tbe contract in this case is tbe statement made by tbe defendant Valentine in respect to tbe value of tbe Iowa land. Tbe evidence shows tbat at tbe time tbe negotiation for tbe exchange of tbe real estate was going on, tbe defendant, stated to tbe plaintiff tbat he valued the Iowa land at $1,600; tbat tbe land was worth tbat sum: and tbat be bad been offered eighteen dollars per acre for it. Tbe defendant testified tbat be bad been offered eighteen dollars per acre for tbe land prior to tbe negotiation; and we do not feel justified by anything appearing in tbe case in saying tbat this evidence was false. True, it appears tbat tbe land was really not worth more than seven or eight dollars per acre at tbe time tbe trade was made. But neither of tbe parties bad ever seen tbe Iowa land, and each seems to have bad equal means of information for ascertaining its value. It does not appear tbat tbe defendant resorted to any artifice or trick of any kind to mislead tbe plaintiff during tbe negotiation for tbe exchange of tbe real estate; and there was no relation of confidence or trust existing between them. Tbe plaintiff saw tbe tax receipts showing tbe valuation o'f tbe land by the assessors for tbe purpose of taxation; and be also saw and examined tbe deed conveying tbe Iowa land to tbe defendant Sophia, wherein tbe consideration expressed was only $800. He also took other means to inform himself in regard to tbe value and situation of tbe land. Under these circumstances tbe question arises, whether or not tbe assertion or statement made by tbe defendant as to tbe value of tbe land affords a sufficient ground for rescinding the contract. And we are of the opinion tbat it does not. It appears to ns tbat tbe statements made by the defendant as to the value of the land were mere expressions of opinion upon a matter as to which honest men might greatly differ in judgment. It is common experience to find intelligent witnesses differing widely in their views as to the value of real estate which has no fixed marketable value. And mere assertions by the vendor as to the value of property offered for sale are so generally made, that a person cannot safely rely upon them in buying the property. “Affirmations of the sort,” says Mr. Kerr, “ are always understood as affording to a purchaser no ground for neglecting to examine for himself, and ascertain the real condition of the property. They are strictly speaking gratis dicta. A man who relies on such affirmations, made by a person whose interest might so readily prompt him to invest the property with exaggerated value, does so at his peril, and must take the consequences of his own imprudence; emptor emit guam mi/nimo potest; venditor vmdit guam máximo potest. Although such affirmations may bo erroneous or false, they will not, except in extreme cases, be regarded as evidence of a fraudulent intent. A statement of value may, however, be so plainly false as to make it impossible for the party to have believed what he stated.” Iierr on Fraud and Mistake, p. 84. These remarks of the author are fully sustained by the following authorities: 2 Kent, 485 et seq.; 1 Story’s Eq. Jut., §§ 199 et seq.; Medbury v. Watson, 6 Met., 246; Smith v. Countryman, 30 N. Y., 655; Higgins v. Samels, 2 J. & H. 460; Kisch v. The Central R’y Co., 3 D., J. & Smith, 122; “ Every person,” says Chancellor Kent, “ reposes at his peril in the opinion of others, when he has equal opportunity to form and exercise his own judgment. Simplex commendatio non obligat." 2 Kent, 486.

The statement as to the value of the Iowa land was unaccompanied by any trick or artifice calculated to mislead the plaintiff or prevent him from taking tbe necessary steps to inform bimself on tbe subject. Being merely tbe expression of an opinion, tbe plaintiff was not justified in relying upon it, but should bave ascertained tbe value of tbe property for wbicb be was making an exchange. .

By the Court. — The judgment of the circuit court is affirmed.