Kimball v. Bangs

We are of opinion that all the representations alleged in the declaration, which are material, fall within what is known as “ dealer’s talk,” and are not sufficient foundation for an action of deceit. The law recognizes the- fact that men will naturally overstate the value and qualities of the articles which they have to sell. All men know this, and a buyer has no right to rely upon such statements.

The representations that the apparatus or invention was of great value, that in its use there was no dirt, smell, or smoke, that it burned a long time and could be run for a small expense, are all in their nature statements of opinion as to the value and utility of the invention.

The representation that “ experiments had been made therewith which had proved successful ” is really of the same character, though put in the form of a statement of a past fact. _ The only material part of the statement is that the apparatus upon experiment worked well, which is in its nature mere opinion, and not a statement of any definite fact.

All these are representations as to the operation and utility of an invention. Such representations must in most cases be matter of opinion, expectation, and probability, upon which a purchaser cannot safely rely, and they will not sustain an action of tort, unless he has been fraudulently induced to omit an examination for himself, which is not sufficiently averred in this declaration. Parker v. Moulton, 114 Mass. 99.

*325The representations that the defendant was treasurer of the National Heat and Light Company, and that said company owned the apparatus, are statements of fact, but they are not material. The declaration alleges that the plaintiff purchased the exclusive right to sell the apparatus of the National Heat and Light Company, thereby implying that they were the owners. The gist of his complaint is, not that he did not procure a valid transfer of the right, but that it was of no value. The statements we are considering have no bearing upon this matter, and, whether true or false, are immaterial upon any issue in the case.

We have thus far considered the first count of the declaration. The same objections apply to the second count, and we are of opinion that the demurrer was well taken to both of them.

Judgment for the defendant affirmed.