#### O. L. Packard Machinery Company, Appellant, vs. Schweiger, Respondent.

*September 15*

October *3, 1911.*

*Sales: Fraud: Mistalce: Opinion as to sise: Negligent reliance thereon by vendee.*

A statement made in good faith by plaintiff’s agent, upon being shown a bolt such as defendant was using and wished to buy,, that it was of a certain size, was a mere expression of opinion upon which defendant had no right to rely without measuring the bolt; and having bought, specifically and not by sample, a quantity of bolts of the size named, defendant is liable therefor, although they were not of the same size as the one shown to the agent.

- Appeal from a judgment of tbe county court of Jefferson county: Charles B. Eogers, Judge.

*Reversed.*

This is an action to recover tbe selling price of a quantity of bolts wbicb were sold and delivered to tbe defendant under tbe terms of a contract wbicb is evidenced by letters wbicb passed between tbe parties. Tbe court made findings of facts as follows:

“1. That Mr. Bull, wbo was tbe agent of tbe plaintiff, called on tbe defendant, and tried to sell bim some bolts; that tbe defendant showed bim tbe bolt be was using; tbat tbe plaintiff’s agent told bim it was a 3-16 inch bolt, innocently supposing tbat to be its real size. Tbat, wbetber tbe plaintiff’s agent took tbe bolt with bim or not, neither side afterward referred to it, and tbe sale was not made by sample. Tbat such bolt was a 3-8 inch bolt. Tbat said plaintiff’s agent wrote to tbe plaintiff herein asking them to quote tbe defendant prices on 3-16 x 2-inch bolts. Tbat tbe plaintiff' did so, and tbe defendant, relying on tbe statement of tbe plaintiff’s agent, Mr. Bull, tbat it was a 3-16 inch bolt shown him, ordered tbe bolts in question. Tbat tbe bolts shipped to-tbe defendant were 3-16 x 2-ineh, commercially correct bolts. Tbat plaintiff bad no knowledge of such representations of' their agent, Bull, at tbe time they were made or any time' *68previous to their shipment of the goods to the defendant, nor until the defendant’s letter of November 27, 1907. That the defendant was ignorant of the size of the holt that he showed the plaintiff’s agent, Bull. That the defendant could not use a holt as small as 3-16 x 2 inches in his business.”

The purchase of the holts by the defendant from the plaintiff was effected by correspondence in which the plaintiff at the request of its agent, Mr. Bull, offered to sell the defendant 8,000 3-16 x 2-inch carriage bolts with thumb nuts at $8.20 per thousand. Defendant upon the receipt of this offer replied: “You can ship us the 5,000 bolts with wing nuts 3-16 x 2 inches at once.” The defendant testified that before negotiating with the plaintiff’s representative, Mr. Bull, he showed him a bolt he had in stock and that Mr. Bull then stated that it was a 3-16 inch holt, and that he relied on that statement in making the purchase disclosed by the correspondence.

Judgment was ordered for the defendant upon the facts as found by the court upon the ground that the facts showed constructive fraud practiced upon the defendant. This is an appeal from the judgment so ordered.

The cause was submitted for the appellant on the brief of *Warren H. Porter,*and for the respondent on that of *Místele & Smith.*

SiebeckeR, J.

The court held that the opinion expressed by the plaintiff’s agent, Mr. Bull, to the defendant before any correspondence took place between the parties, that the bolt shown the .agent by the defendant was a 3-16 inch bolt, constituted a representation on which the defendant had a right to rely in making the purchase and that its falsity operated to defraud the defendant. It is clear that the evidence does not permit of such an inference. It is obvious that it was equally within the means of the defendant and the plaintiff’s agent, before the bolts were ordered, readily to ascertain the size of *69tiie bolt defendant exhibited to tbe plaintiff’s agent. It is apparent from tbe circumstances disclosing what occurred at tbe time that tbe plaintiff’s agent was merely expressing bis opinion of the size of tbe bolt shown him by tbe defendant, and that tbe defendant was not justified in relying on such opinion as tbe actual size of tbe bolts be needed in bis business and desired to purchase. Knowledge of tbe actual size of tbe exhibited bolt was readily open to tbe defendant by applying any simple and ordinary means of measuring it. Uor does tbe evidence tend to show that tbe defendant was hindered or prevented through artifice or otherwise from acquiring accurate knowledge of this fact. Tbe conclusion is inevitable that tbe defendant failed to act with that care and prudence tbe situation demanded to inform himself on tbe subject of bis purchase, and hence be cannot complain of having ordered a kind of bolts different from those be bad theretofore used. Upon these considerations tbe judgment dismissing tbe complaint cannot be sustained. Upon tbe record the plaintiff is entitled to recover tbe purchase price of tbe goods delivered..

*By the Court.*— Tbe judgment appealed from is reversed, and tbe cause remanded with directions to award tbe plaintiff judgment for tbe purchase price of tbe bolts delivered, with interest thereon, and for costs.

Barnes, J., took no part.