statements is not absolute, and a number of recent decisions seem to go a considerable distance in cutting it down. An example is Iowa Economic Heater Co. v. American Economic Heater Co. (C.C.) 32 F. 735, cited by the plaintiff.The limits of such immunity are not sharply defined and whether in any given case a misrepresentation is or is not actionable must depend upon the particular circumstances involved.
The introductory pages of the Blue Book contain statements that the new heating regulator has exclusive features which place it "far beyond competitive devices in quality of manufacture, dependability and precision of operation" and that in it there is the "same mechanical dependability that distinguishes all other products bearing the G E monogram." The copies of advertisements which appear say that it functions with "a precision unequaled in this type of equipment"; that the General Electric name has always been an assurance of "mechanical excellence and operative dependability." There is a graph reproduced which compares the room temperature under General Electric control with that of an ordinary thermostat from which it appears that the former varies less than one degree during a period of three hours' operation.
Now it may be conceded that the device did not work satisfactorily. Whether it was far beyond other competitive devices in quality, dependability, and precision, or whether it was as dependable as other General Electric products, does not appear. "Mechanical excellence" is necessarily comparative and largely a matter of opinion. The graph might be construed as representing as a fact that the device was capable of maintaining a constant temperature, but even so, there is no evidence that there was any serious shortcoming in this particular or that such as there was had much to do with the breakdown of the plaintiff's sales campaign. There is no evidence of complaints as to slight variations beyond one degree where the installations were otherwise dependable.
The real difficulty lay in numerous mechanical defects which caused constant trouble, but it must be borne in mind that the gist of this action is not selling defective goods, but making false statements of fact. I am of the opinion that the general commendatory statements in the advertising matter were not such representations as would form a basis for action.
As Judge Hand pointed out in Vulcan Metals Co., Inc., v. Simmons Mfg. Co. (C.C.A.) 248 F. 853, the cases in which the plaintiff is justified in relying upon such expressions of opinion, and might bring action if deceived by it, are generally cases in which the parties are not dealing upon equal grounds. In the case at bar the plaintiff's officers were experts in the business. The plaintiff urges that because a speedy decision was required of them they were at a disadvantage and accepted at face value much of the recommendation which otherwise would have been tested; but as a matter of fact all that appears about this is the testimony of the plaintiff's president to the effect that "there were two or three factors which made it imperative that we should reach a decision as soon as possible. One was that this advertising had all been broken and they wanted to get organized, a sales organization set up to sell the heat regulator. Now, also, we understood that there was somebody else interested in the distributorship that was offered to us, * * * but, naturally, they wanted a decision as soon as possible, so Mr. Trump and myself said that we would try to reach a decision as soon as we could, and if it was favorable get to work. * * *
"The question of investigating and substantiating the market for heat regulators would require some study, would require an organization beyond our resources to investigate, and General Electric supposedly had done all that work, they had made the surveys and, naturally, we decided that within reason their statements must be -- some facts behind them."
I am of the opinion that under all the law and evidence a verdict for the defendant should have been directed and for that sole reason a motion for a new trial is now granted.
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