Sec 246

A false statement as to a collateral matter, not entering into the merits of a contract, does not subject the party making it to an action for deceit; nor does it invalidate a contract which it ought not, supposing the other party to have acted with ordinary prudence, to have induced such party to make,or whose making it ought not to have determined.2 The question of materiality is to be determined by the tests heretofore given.3 It must be recollected that materiality is always relative. What may be material in one case may be immaterial in another. The question is, adaptability to the purposes of the contract, and whatever touches this adaptability may be said to be material. The standard of discrimination must be that which business men of the same class are accustomed to exercise under similar circumstances. It does not follow that because a party is swayed by whims, therefore, a misstatement as to such whims exposes the party making it to an action for deceit, or taints a contract so induced in such a way as to leave it open to rescission. If a party acts irrationally, he must bear the consequence of his acts; and in addition to this consideration, if we should hold that contracts are vitiated where either party uses untrue expressions of flattery or ingratiation, few contracts would stand. We have, therefore, to fall back on the test of materiality. As to this, it has been held that the burden is on a party making false statements in the course of a negotiation, to prove that they did not exercise a preponderating influence on the other party, so as to rationally induce v. Snow, 40 Mich. 699; High v. Kist-ner, 44 Iowa, 79; Estell v. Myers, 54 Miss. 174; see notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299.

False statement as to collateral matter does not avoid.

1 Jones v. Rimmer, L. R. 14 Ch. D. 588.

2 Story's Eq. Jur. 12th ed. sec 191; him to asree to the contract.1 But this should be confined to pretences on their face likely to have such an influence. Persons engaged in business may use many modes of recommendation, the truth of which would not bear scrutiny; yet the fact that such expressions were used, no matter how false they may have been, would not expose the parties making them to an action for deceit, or invalidate contracts in which the expressions were used. It is otherwise, however, as we have seen, when the representations go to the merits of the contract. If so, it is no answer that other motives contributed to induce the party imposed upon to agree to the contract.2 And in any view the question of materiality is one of fact, to be determined by all the circumstances of the particular case,3 subject to the general principle that an immaterial misrepresentation neither avoids a contract nor sustains an action for deceit.4 And that which ought, under all the circumstances of the case, to have made no difference in the result, cannot be deemed material.5.

Neville v. Wilkinson, 1 Bro. Ch. 546; Attwood v. Small, 6 Cl. & F. 232; Geddes v. Pennington, 5 Dow. 159; Vane v. Cobbold, 1 Exch. 798; Vernon v. Keys, 12 East, 632; 4 Taunt. 488; a case, however, questioned by Mr. Pollock (Wald's ed. 496). 3 Supra, sec 180-186 et seq.