Herrill v. Rugg

NOURSE, P. J.

Plaintiff sued for damages for fraud. The cause was tried before a jury. At the close of all the evidence defendants moved for a directed verdict. At the suggestion of the trial judge the motion was changed to a motion for nonsuit. This motion was granted and judgment for defendants was entered. Plaintiff appeals upon typewritten transcripts.

Respondents Rugg and Lisbon were partners engaged in the business of building and selling houses. Defendant Hitchcock was a long-time friend and adviser of the plaintiff, with whom he boarded and with whom he had been engaged as a partner in an automobile business. Hitchcock approached Rugg and- Lisbon and obtained their consent to present to plaintiff a proposition to exchange her home property for four houses being erected in the Rugg and Lisbon tract. Rugg and Lisbon agreed to pay Hitchcock $500 for effecting the exchange. In presenting the proposition to plaintiff Hitchcock represented to her that the four houses were of good value and were each worth $500 more than she was paying for them. She testified that she believed this statement and made the exchange in reliance

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upon it. She took the four houses, sold three of them, and retained the fourth as her residence.

The representations upon which appellant bases her action were purely matters of opinion and do not constitute actionable fraud. (12 R. C. L., pp. 279, 281; 12 Cal. Jur. 727; 26 Cor. Jur., p. 1079;

Brandt

v.

Krogh,

14 Cal. App. 39, 49 [111 Pac. 275].)

The qualification of this rule, that matters which might otherwise be mere expressions of opinion may be actionable ■when they are stated as accomplished facts

(Neff

v.

Engler,

205 Cal. 484, 490 [271 Pac. 744]), does not apply here. The appellant testified that Hitchcock “praised the houses a great deal”, and that he told her that “in his opinion the houses were worth $500 more than she was paying for them”. Three witnesses were called by appellant as real estate “experts”. Their opinions as to the values of the four houses varied more than $500. The buildings were not completed when the representations as to value were made; they were to be located in a new tract where “values”, as distinguished from selling prices, had not become fixed. Prom the very nature of things the valuation placed by Hitchcock was a mere expression of opinion which was not stated as a fact and was not represented as based upon fact. It is impossible to conceive that it was treated by either party as anything more than an opinion, or what is usually termed “dealer’s talk” or “trade talk”. (26 Cor. Jur., p. 1097; 12 R. C. L., pp. 250, 251.) Such representations, which from the very nature of things are not susceptible of personal knowledge, are uniformly held expressions of opinion and not actionable.