Homer v. Perkins, 124 Mass. 431; Gordon v. Butler, 105 U. S. 553, 26 L. ed. 1166; Ellis v. Andrews, 56 N. Y. 83; Schramm v. O'Connor, 98 Ill. 539; Anderson v. Mc Pike, 86 Mo. 293: Danson v. Graham, 48 Iowa, 378; Shade v. Creriston, 93 Ind. 591; Chrysler v. Canaday, 90 Ires v. Carter, 24 Conn. 392; Platt v. Brown, N. Y. 272, 43 Am. Rep. 166; Williams v. Me-30 Conn. 337; Bennett v. Gibbons, 55 Conn. 450; Fadden, 23 Fla. 143; Lockwood v. Fitts, 90 Ala. 3 Sutherland, Damages, § 1178. 150; Welling v. Schiller, 27 Ill. App. 284; Gen. Dig. 1890, p. 988, § 39.

by the court." If the defendant were at lib. erty to make this claim here, it might be shown in reply that the facts set up in the counterclaim and the facts found differ very materially, and that this difference may be just the difference between a false representation that is actionable and one that is not; but the defendant, under the statute (Gen. Stat. § 1135), is not at liberty to make this claim here, because he did not make any claim of this kind in the court below, nor has be made it in his assignments of error. Under the circumstances of this case, we decline to consider this claim.

The general rule is that a mere naked assertion | foundation for an action, upon the facts found of the value without more, made between vendor and vendee during the negotiations for a sale, though untrue, and known to be so by the one who makes it, and relied on by the other, to his burt, does not constitute an actionable deceit; and this for the reason that such an assertion, in most cases, is, and is understood to be, the statement of an opinion, and not of a fact, and the party to whom it is made has no right to rely upon it, and, if he does so, his loss, if any occurs, is held to be the result of his own folly. 1 Bigelow. Fr. 490; Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315; Morse v. Shaw, 124 Mass. 59; Homer v. Perkins, 124 Mass. 431, 27 Am. Rep. 677; Ellis v. Andrews, 56 N. Y. 83, 15 Am. Rep. 379; Chrysler v. Canaday, 90 N. Y. 272; Shanks v. Whitney, 66 Vt. 405. See also cases cited in note to Cottrill v. Krum, in 18 Am. St. Rep. 556, 100 Mo. 397.

The defendant claims that the court excluded the evidence of the value of the Julius street property as compared with the value of the farm, and that it erred in so doing. Although there is some doubt as to whether the court did absolutely and finally rule this evidence out, we will consider the case as if it had so ruled. The defendant claimed that the measure of damages was the difference between the value of the farm and the value of the property given in exchange for it, while the plaintiff's claimed that it was the difference between the value of the property which the defendant owned and conveyed and its value if it had been as represented. From the record, it is clear that this evidence was offered solely as bearing upon the question of damages, and on the assumption that the rule as to the measure of damages was as claimed by the defendant. In his brief the defendant now claims that the evidence was admissible for another purpose, namely, as "tending to show the improbability of his baving made the representations complained of. The evidence was undoubtedly admissible for this purpose, and for other purposes, as, for instance, as evidence-but not conclusive-to show, from the price paid, the value of the farm conveyed to the plaintiffs. Bigelow, Fr. pp. 627, 628; 3 Sutherland, Damages, p. 592. But the trouble with this claim is that it was not made in the court below, and cannot be considered now. The question, then, whether the court erred in excluding this evidence, depends on the further question, What is the proper measure of damages in cases of this kind? A vendee, induced to purchase land by false and fraudulent representations, may, acting seasonably, rescind the contract, and, after giving or offering to give back what he received, may recover back the consider

There are, undoubtedly, exceptions to this general rule, arising out of the special circumstances under which the representation as to mere value is made,-as, for instance, where the one who makes the representation holds a position of trust or confidence towards the other, which gives the latter a right to rely on the representation, or where the seller has, or assumes to have, special knowledge of the value of the property, and the buyer has po knowledge thereof, and the latter, to the seller's knowledge, trusts entirely to the sell er's representation. In such cases the seller may justly be held liable for his false representations, because by them the buyer is fraudulently induced to forbear inquiry as to their truth. A mere false representation as to the value of real estate, knowingly made by the seller to the buyer, is not actionable, un less the buyer has been fraudulently induced to forbear inquiry as to its truth; and in that case the means by which he was thus induced to forbear inquiry must be specifically set forth in the pleading. "To such representations the maxim Caveat emptor applies. The buyer is not excused from an examination unless he be fraudulently induced to forbear inquires which he would otherwise have made. If fraud of this latter description is relied on as an additional ground of action, it must be specifically set forth in the declaration, and cannot be charged in general terms only." Parker v. Moulton, 114 Mass. 99, 100. 19 Am. Rep. 315; Ellis v. Andrews, 56 N. Y. 83, 15 Am. Rep. 379; Chrysler v. Canaday, 90 N. Y.ation, or he may retain the land, and recover 272.

Upon the counterclaim, as it stands, the defendant's case falls within the general rule and not within any of the recognized exceptions. If he desired to bring it within any of these exceptions, he should have alleged the specific facts which would bring it within one of them; but this he did not do, and for this reason the demurrer was properly sustained.

damages for the deceit in a proper action. Ives v. Carter, 24 Conn. 392, 403; Krumm v. Beach, 96 N. Y. 398: Vail v. Reynolds, 118 N. Y. 297; Pryor v. Foster, 130 N. Y. 171. The present case is one where the plaintiffs have elected to keep the land, and seek to recover for the deceit in an action of tort; and the question is, What is the measure of damages in this action? Upon this question the deciIn his brief the defendant claims, in sub- sions of the courts of last resort are not in stance, that the general principles here applied harmony. In one class of cases the measure to the statement of facts in the counterclaim, of damages is held to be the difference between if applied to the facts found, show that the the actual value of the property at the time of plaintiffs have no cause of action. He says, the purchase and its value if the property had Misrepresentations of the dimensions of the been what it was represented or warranted to farm in question by the defendant to the plain-be, while in the other class of cases it is held tiff, even though intentional, cannot lay a to be the difference between the real value of

the property retained by the plaintiff, as it was | regard to the measure of damages in actions of at the time of the purchase, and the value of deception has been stated, and we think corthat which he gave for it. In the former class rectly, as follows: "The defendant is liable, of cases the plaintiff is allowed the benefit of not for everything that follows upon his fraud, his bargain; in the latter, he is not. Morse v. but for what may be presumed to have been Hutchins, 102 Mass. 439, is an example of the within his contemplation at the time, as a man first class of cases, while Smith v. Bolles, 132 of average intelligence." Bigelow, Fr. p. 625. U. S. 125, 33 L. ed. 281, is an example of the Applying the general rule (as thus stated to a other class. In Morse v. Hutchins the court case like the present, we think the loss of the says: "It is now well settled that, in actions benefits of the bargain is one of the elements for deceit or breach of warranty, the measure of damages which the defendant must be of damages is the difference between the held to have contemplated as the natural actual value of the property at the time of and proximate result of his conduct, and for the purchase, and its value if the property had which he is therefore answerable. In Bigebeen what it was represented or warranted to low, Fr. p. 627, the rule is stated as follows: be. This is the only rule which will "It is now well settled that, in actions for give the purchaser adequate damages for not deceit or breach of warranty in sales of perhaving the thing which the defendant under-sonalty or realty, the measure of damages is took to sell him. To allow to the plaintiff the difference between the actual value of the only the difference between the real property at the time of the purchase and its value of the property and the price which value if the property had been what it was he was induced to pay for it would be to represented or warranted to be," citing make any advantage lawfully secured to the numerous cases. This is the rule, also, as innocent purchaser in the original bargain stated and favored in 3 Sutherland, Damages, inure to the benefit of the wrongdoer, and, in pp. 589, 592. It is the rule adopted and folproportion as the original price was low, would lowed in numerous cases relating to the sale afford a protection to the party who had of personal property, and it is the rule broken, at the expense of the party who was adopted and followed in the following cases ready to abide by, the terms of the contract.' relating to the sale of real estate: Krumm v. In Smith v. Bolles, on the other hand, it was Beach, 96 N. Y. 398; Vail v. Reynolds, 118 N. said: "The measure of damages was not the Y. 297. in New York; Drew v. Beall, 62 Ill. difference between the contract price and the 164, 168; Nysewander v. Lowman, 124 Ind. reasonable market value if the property bad 584; Page v. Parker, 43 N. H. 363, 80 Am. been as represented to be, even if the stock | Dec. 172; Shanks v. Whitney, 66 Vt. 405; had been worth the price paid for it; nor, Williams v. McFadden, 23 Fla. 143. Moreover, if the stock were worthless, could the plain it is the rule adopted and followed by this tiff have recovered the value it would have court in Murray v. Jennings, 42 Conn. 9, 19 had if the property had been equal to the Am. Rep. 527. In that case it does not appear representations. What the plaintiff might have to have been much discussed, but its appli gained is not the question, but what he had cation was directly in question,-was, inlost by being deceived into the purchase. deed, the only question in the case,—and it The suit was not brought for breach of con- was specifically and deliberately adopted and tract. The gist of the action was that the followed. We see no good reason why it plaintiff was fraudulently induced by the de- should not be considered as the settled rule fendant to purchase stock upon the faith of in this state. The evidence of the value of certain false and fraudulent representations. the Julius street property, then, having been The defendant was liable to respond offered solely for the purpose of showing the in such damages as naturally and proxi- amount of the plaintiffs' damages, under the mately resulted from the fraud. He was rule laid down in Smith v. Bolles, was inadbound to make good the loss sustained, such missible, and the court committed no error in as the moneys the plaintiff had paid out, and excluding it for that purpose. interest, and any other outlay legitimately The defendant further claims that the court attributable to defendant's fraudulent conduct; erred in holding that all his representations as but this liability did not include the expected to the number of acres in the farm "were fruits of an unrealized speculation." Both not embraced in the deed itself, and the deof these cases relate to sales of personal scriptions contained therein." From the obproperty, but no distinction is made, in the jectionable way in which this matter is stated application of these rules, between sales of in the record, by transcript from the stenogpersonal and sales of real property. Bigelow, rapher's notes, instead of a brief statement Fr. p. 627; Sedgw. Damages, 2d ed. p. 559; of the point by the court in the ordinary 3 Sutherland, Damages, § 1171. And no good manner, it is a little doubtful just what the prereason has yet been given why there should cise claim of the defendant was before the be any such distinction. Both courts, in the lower court upon this point. He seems to cases above mentioned, recognize the existence claim that, as the false representations were of the general rule that the defendant is only made about a month before the deed was liable for such damages as are the natural made, they were too remote in time to be adand proximate result of his fraud, but they missible; but in his brief he says: "The court differ in applying it. In Morse v. Hutchins erred in refusing to hold that all the reprethe loss of the benefits of his bargain is resentations as to the dimensions of the propgarded as one of the elements of plaintiff's erty were embraced, and must be found, in damages, resulting naturally and proximately the descriptive part of the deed itself." He from the fraud, while in Smith v. Bolles such says, in effect, that the representations were loss is not so regarded. The general rule in made a month before the deed was given;

In his last assignment of error, the defendant claims, in effect, that the court failed to adopt and apply any fixed rule as to the measure of damages, and did not assess them "in accordance with the rules of exact justice." The record shows that the parties upon the trial made specific, conflicting claims with respect to the rule of damages; and they were entitled to have the true rule applied, and to know which of the conflicting rules was applied by the court. It was the duty of the court to adopt and apply the rule which the plaintiffs contended for, and it was also its duty to make this known to the parties in some way. The record upon this point is not as clear as it should be. It says: "Adopting either rule, I find from the evidence as to the value of the several properties that the result would be approximately the same." The fact implied in this statement, that the court had heard and considered evidence as to the value of both properties, would seem to indicate the adoption of the rule which the defendant contended for, while there are other things else. where in the record which seem to indicate that the court adopted the other rule. record does not show, either expressly or by clear implication, which of the conflicting rules the court adopted and applied. Perhaps the fair import of the record is that in the process of assessing the damages the court applied both rules, and, finding the results approximately the same, did not decide which of them was the true rule, and exclusively ap plicable. It was the duty of the court to decide this question, however, and to make its decision manifest in some way to the parties, and this was not done. We think the court erred in this, but if, as is found, the application of either rule leads in this case to substantially the same result, it is difficult to see how the de fendant has been harmed by the error, and for this reason we do not advise a new trial on account of it.

that plaintiffs had ample opportunity during | Pa. 90; Griswold v. Gebbie, 126 Pa. 353.-cases that month to find out whether they were where vendees, after deeds to them, sued for true or false, and that they then accepted a deed fraud in the sale of real estate. See also the repugnant on its face to the representations; following cases. where fraud was allowed to and that these facts show that it is "hardly be shown notwithstanding the fact that the credible that after all these representations evidence, in one sense, tended to contradict_a the defendant executed and the plaintiffs ac writing: State, Cummings, v. Cass, 52 N. J. L. cepted a deed radically different from their 77; Mallory v. Leach, 35 Vt. 156, 82 Am. Dec. tenor." These facts were entitled to great | 625; Cole v. High, 173 Pa. 590; Feltz v. Walker, weight as evidence bearing upon the ques- | 49 Conn. 93-98; Fox v. Tabel, 66 Conn. 397tion whether the plaintiffs relied on such rep- 400. The court below did not err in admitting resentations, and whether they were made at the evidence in question. all; and we must, upon this record, assume that the court gave to them all the weight to which they were entitled; but, in spite of them, the court found against the defendant on this point, as upon a matter of fact, and we cannot review that finding here. We unders and the real claim of the defendant upon the point now in question to be that evidence of the oral representations was inadmissible because it tended to contradict or vary or add to the deed in some way; that all such representations prior to the deed were merged and embraced in it, and so could not be proved. This claim is not tenable. The evidence was not offered to contradict, add to, or vary the deed, but to show the fraud as alleged, which could be shown in no other way. It was offered to show the false representations which induced the plaintiffs to enter into this transaction and to accept the deed. Certain monuments were pointed out by the defendant to the plaintiff as marking the bounds of the land as to which they were in treaty, which in fact were situated outside of it. This was done with an intent to deceive, and led her to accept the deed subsequently tendered, without having the property surveyed, or making any further examination as to the number of acres embraced within the boundaries mentioned in the conveyance. Her omission to take such steps was a natural consequence of the fraudulent representations. They had precisely the effect de signed by the defendant, and he was properly held responsible for the resulting damage. As was said in Russell v. Tuttle, 2 Root, 22: "This action is not laid upon the writing, but for the fraud, which can be proved no otherwise than by the testimony of witness es." In Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313, a vendor, orally, falsely represented that a farm contained 130 acres, when it contained but 117; and it was held that, although a parol warranty could not be shown as against the deed, fraud in representing the quantity could be shown. In Whitney v. Allaire, 1 N. Y. 305, 308, it is said: "For more than thirty years it had been the settled doctrine of the courts of this state that fraudulent representations in reference to the title of real estate, accompanied with damage, is a good ground of action, and that it is immaterial whether any or what covenants are contained in the deed of conveyance." In Carvill v. Jacks, 43 Ark. 439, a vendee, induced to accept a deed by false and fraudulent representa tions, sued for damages for the fraud; and it was held that, notwithstanding the deed and its covenants, he could prove the oral representations. A similar ruling was followed in Dano v. Sessions, 65 Vt. 79; Keefe v. Sholl, 181

There is no error.

The

The other Judges concur, except Hamersley, J., who dissents.

Hamersley, J., dissenting:

gen

In an action of fraud the plaintiff can recover the amount of his actual damage. The elements of actual damage depend on the circumstances of each case, are widely variant, and can hardly be defined accurately in eral rule. Where a vendor warrants an article sold to be of a certain kind, he makes a special contract to indemnify the vendee for any loss by reason of the article not being of that kind; and so, in case of a breach of the warranty, be is bound, by force of the contract, to put the

vendee in the same position he would have oc- as to representations of the dimensions of land cupied if the article had been as warranted. In sold. A contract of warranty in such case can other words, the damage to the vendee is the only be proved by the writing. The present loss of the benefit of his contract. In a large plaintiff could not have recovered the alleged class of sales of personal property, a contract benefit of his contract in an action for a breach of warranty may be established by proof of of contract. There was no legal contract of false representations. In such cases it has indemnity, and he could therefore prove no been held that, so far as the damage was con- breach and no damage. There was a fraud cerned, it was immaterial whether the form of which induced an exchange of land and he action was the one provided in case of fraud, can recover for the damage resulting from that or in case of breach of warranty; that in either exchange, but not, as it seems to me, for the case a contract was established by the same loss of the benefit of a contract which he has proof, and in either case the plaintiff was en- not made. I think, also, that the error in retitled to the benefit of his contract, but entitled fusing to assess damages in accordance with a to that benefit solely because the contract had rule adopted by the court is fatal. If we asin fact been validly proved. And so for this sume that the judge made a separate assess class of cases a special rule was recognized,- ment under each rule, and reached substanthat in actions of fraud, where a sale had been tially the same result, yet he did not reach the induced by false representations, the plaintiff same result, whatever latitude we may give to could recover the benefit of his contract. But the word "substantially." The assessment it is evident that such rule implies an existing adopted must have followed one or the other contract of indemnity, and cannot apply where rule (for the judgment is clearly illegal, if he such a contract is not proved. It might have followed neither); and if his judgment, follow. been better if in such cases the courts had held ing the wrong rule, is a single dollar larger the plaintiff to his action of contract when he than it would have been, following the right merely sought to recover for its loss, but it is rule, it involves the violation of a legal right. certain the rule cannot be extended beyond its To sustain the judgment on the ground that reason without leading to unfortunate con- no practical injury was done, the assessment fusion in respect to the features which distin- under each rule must have been validly made; guish contract from tort. I do not understand but the assessment under the rule claimed by the majority of the court to question this, but the defendant was made, if not without evito hold that the present case is within the rea-dence, yet in the absence of material evidence son of this special rule. It seems to me, however, that it is not. False representations as to certain classes of personal property may establish a contract of warranty. This is not true

which the defendant was not permitted to in troduce. I think there is error, and that a new trial should be granted.

MARYLAND COURT OF APPEALS.

Mayor, etc., of HAGERSTOWN et al.,
Appts.,

v.

Frank WITMER et al.

(........

1. Provisions for the summary destruction of dogs running at large contrary to statNOTE.-Municipal power over nuisances affecting | highways and waters.

I. In general.

II. Removal of garbage, etc.

III. Obstructions of and encroachments on streets.

a. In general.

b. Stalls, show-cases, signboards, etc.

c. Buildings and fences.

d. Things overhanging streets, etc.

e. Trees on streets.

IV. Nuisances relating to the use of streets. a. Parades and noise on streets.

b. Animals running at large.

c. Vehicles.

d. Selling on streets.

e. Sliding in the streets.

f. Sidewalks.

g. Gas pipes.

h. Convict labor on the streets.

1. Betting on streets.

V. Waters, watercourses, etc.

The general principles of the law relating to the power of municipal corporations to define, pre

utes or ordinances are within the police power of the state.

2. An ordinance prohibiting dogs from running at large on the streets and alleys of a city is within the general power to pass all ordinances necessary for good government, and for the preservation of peace and good order and the protection of the lives and property of citi

zens.

vent, and abate nuisances are treated of in the note to Grossman v. Oakland (Or.) 36 L. R. A. 593.

The question of the power of municipalities over nuisances affecting buildings and other structures will be found in note to Evansville v. Miller (Ind.) 38 L. R. A. 161.

A note upon the subject of the power of such authorities over nuisances affecting safety, health, and personal comfort accompanies the case of Harrington v. Providence (R. I.) 38 L. R. A. 305,

Cases of municipal power over nuisances affecting public morals, decency, peace, and good order form note to State v. Karstendiek, ante, 520.

The question of prescription in cases of nuisances, and the subject of the right of such authorities to relief in equity will form separate notes.

The question of municipal control over nuisances arising from particular trades or businesses will be found treated of in the note to Ex parte Lacey (Cal.) 38 L. R. A. 640, and the question of such control over nuisances arising from smoke will be found in note to St. Louis v. Heitzeberg Pkg. & Provision Co. (Mo.) ante, 551.

This note is limited in its extent, and does not