Experts, or those who assume to act as such, who misrepresent a matter capable of determination by such an expert, render their principal liable therefor, notwithstanding similar representations by a nonexpert would be regarded mere expressions of opinion. as seized and taken from the possession of the purchaser. The purchaser at no time questioned the right of the appellant to retake possession of the machine, and made no defense against the writ of attachment. It, however, defended against any recovery on the note and sought to recover the cash payment made upon the purchase price. Its ground of defense and ground of recovery was fraud. It alleged that it, together with others, was operating a terminal station in the city of Spokane for urban bus lines, at which station the authorized agent of the appellant appeared and offered to sell it one of the appellant's machines. That the agent, to induce the respondent to purchase the machine, falsely and fraudulently represented to the respondent that he had been for several days investigating the condition of the respondent's place of business. and counting the number of people Fullerton, J., delivered the opin- who went in and out of the place; ion of the court: 20 Cyc. 19; Tiffany, Sales, 2d ed. Hornbook Series, 177; Burroughs Adding Mach. Co. v. Scandinavian-American Bank (D. C.) 239 Fed. 179; Great Western Motors v. Hibbard, 112 Wash. 541, 192 Pac. 958; Hahn v. Brickell, 135 Wash. 189, 237 Pac. 305; Starwich v. Ernst, 100 Wash. 198, 170 Pac. 584; Bliss v. Clebanck, 136 Wash. 32, 238 Pac. 979; Wescott v. Wood, 122 Wash. 596, 212 Pac. 144; Christensen v. Koch, 85 Wash. 472, 148 Pac. 585; Crawford v. Armacost, 85 Wash. 622, 149 Pac. 31; O'Daniel v. Streeby, 77 Wash. 414, L.R.A.1915F, 634, 137 Pac. 1025; Noyes v. Belding, 5 S. D. 603, 59 N. W. 1069; Wooddy v. Benton Water Co. 54 Wash. 124, 132 Am. St. Rep. 1102, 102 Pac. 1054; Gilluly v. Hosford, 45 Wash. 594, 88 Pac. 1027. On November 19, 1923, Holcomb & Hoke Manufacturing Company sold to the respondent, Auto Interurban Company, a Butter-Kist Popcorn machine, on a conditional sales contract. The contract price of the machine was $895. Of this sum, $150 was paid in cash, and the balance was agreed to be paid in biweekly installments of $29.50 each, and a final installment of $5.50. The contract provided that a promissory note should be given for the deferred payments, and such an instrument was given, although, perhaps, not in form of a negotiable instrument. Both the contract and the note provided that a default in the payment of any installment of the purchase price, when due, should render the unpaid balance immediately due and collectable. The purchaser refused to make any of the deferred payments, whereupon the appellant began the present action to recover upon the note. At the commencement of its action, it sued out a writ of attachment under which the machine was that he was an expert in such matters, and had been engaged for a number of years in installing such machines, and was able to tell from the number and character of the people who frequented a particular place whether such a machine could be profitably operated therein or not; that, if the respondent would purchase such a machine and install it in its place of business, the machine would produce sufficient revenue to meet all expenses of operation and earn a net profit of at least $60 per month; and that all of such machines operated in the city of Spokane were operated at a profit. It further alleged that each and all of the representations so made were false, and known to be so when made, and were made with false and fraudulent purpose of inducing it to purchase a machine; that it was without knowledge of the falsity of the representations, and contracted to purchase the machine in reliance thereon; and that after installing the machine and operating it for a reasonable time, it found that the machine could not (140 Wash. 581, 250 Pac. 34.) be operated at a profit. It also alleged that it tendered a delivery of the machine to the appellant, and demanded a return of the sum it had paid upon the purchase price. At the trial, which was had before the court sitting with a jury, the evidence on the part of the respondent tended to substantiate the allegations of its answer. The jury returned a verdict in the respondent's favor, and it is from the judgment entered upon the verdict that the present appeal is prosecuted. The assignments of error question the sufficiency of the facts to justify the verdict and judgment. It is argued that the representations made by the agent are mere expressions of opinion and are for that reason not actionable. But we are clear that the representa Fraud-representation by vendor as to possibilities of machine. tions here made are actionable. It is, of course, sometimes difficult to determine whether a given statement is one of opinion or one of fact, as the subject-matter, the form of the statement, the surrounding circumstances, and the and the respective knowledge of the parties each have a bearing upon the question, and there may be a want of one or more of the controlling circumstances. But there is a distinct line of demarcation between the rule for which the appellant contends and the one here applicable. If one merely states that, in his opinion, no matter what form the words may take, a given result will follow from a given act, no action will lie upon the expression, no matter how much another may have relied thereon to his injury. But if he states that he has, by reason of his observations and experience, particular knowledge of the subject, and knows because of his particular knowledge that a given result will follow from the given act, an action will lie thereon, if it is falsely made, by one who has acted thereon to his injury. The distinction is that in the one instance there is merely the expression of an opin ion, while in the other there is a statement of fact blended with the expression of opinion; there is an implied assertion that he knows facts which justify and make certain his opinion. The representations used in the instant case fall within the latter rule. There was a representation of knowledge of particular facts on which the expression of opinion was based-facts of which the agent had knowledge but which were unknown to the purchaser. The other grounds of objection are founded upon the language of the contract of conditional sale. It is recited therein that the order is not subject to countermand, and does not depend for its validity on any condition not set forth therein, and that "no agreement, verbal or otherwise, or representation or claim of any kind shall have force. unless contained in this order." But we have repeatedly held that provisions of this sort in a contract in contract not cannot be used as a Sale-condition cloak for fraud. cloak to cover fraud. Our latest expression on the subject is found in the case of Producers Grocery Co. v. Blackwell Motor Co. 123 Wash. 144, 212 Pac. 154. In that case the appellant had sold to the respondent a Reo auto truck on a conditional sales contract. The deferred payments were not made, whereupon the appellant took possession of the truck under the terms of the contract. The respondent thereupon began an action to recover the sums it had paid on the purchase price, on the ground that it had been induced to make the purchase because of the fraudulent representations of the appellant's agent. There was a recovery in the trial court and an appeal from the judgment entered. Concerning the question here involved, we used this language: "While upon its face this is an action for the recovery of the purchase price paid, it is in effect an action to rescind the contract, based upon fraud entering into and inducing its execution. After the truck had been demonstrated and before the execution of the conditional sales contract, the respondents gave to appellant a written order for the truck, which, after describing it, recited that 'it is understood that the Blackwell Motor Company will not be bound by any understandings, agreements or representations, express or implied, that are not specified herein.' It is claimed by appellants that the oral testimony with reference to the representations alleged to have been made by the appellant Solberg was not admissible because it tended to vary and contradict the terms of the written order. If the oral testimony had been with reference to oral warranties, then the rule contended for by appellants would be applicable, but it is inapplicable as against testimony tending to show fraud or false representations which were relied upon and which entered into the making of the con tract of purchase. Fraud vitiates everything it touches and is not merged in the written contract. Schroeder v. Hotel Commercial Co. 84 Wash. 685, 147 Pac. 417; Wells v. Walker, 109 Wash. 332, 186 Pac. 857; 22 C. J. 1215; 10 R. C. L. 1058." The judgment is affirmed. Tolman, Ch. J., and Holcomb, Mitchell, and Bridges, JJ., concur. NOTE. As to promises and statements as to future events as fraud, see annotation following PALMETTO BANK & T. Co. v. GRIMSLEY, post, 46. Cases involving the particular questions which constitute the basis of the decision in HOLCOMB & H. MFG. Co. v. AUTO INTERURBAN Co. ante, 39, will be found in subdivisions IV. and VII. b, of that annotation. (134 S. C. 493, 133 S. E. 437.) Fraud, § 19- rescission of contract. 1. Inducing a contract by a promise which there is no intention at the time of performing is a fraud for which the contract may be rescinded. [See annotation on this question beginning on page 46.] APPEAL by defendants from an order of the Common Pleas Circuit Court for Florence County (Shipp, J.) granting plaintiff's motion to (134 S. C. 493, 133 S. E. 437.) strike out the answer in an action brought to foreclose a mortgage. Reversed. The facts are stated in the opinion of the court. Messrs. Woods Dargan and W. H. the defendant gradually to liquidate the debt; (3) that "in the event of the death of the said C. D. Grimsley before the mortgage above men Cothran, J., delivered the opinion tioned has been satisfied by payof the court: This action was commenced at a time not stated in the record for appeal, but evidently between September 27, 1924, and December 12, 1924, for the foreclosure of a mortgage given by the defendant C. D. Grimsley to the plaintiff bank securing the payment of a note dated September 27, 1923, due September 27, 1924, for $15,000, with interest from date at 6 per cent., and 10 per cent. attorney's fees. The mortgage covered eight separate pieces of real estate, including, as tract No. 1, the residence lot of the mortgagor. The complaint is in the usual form. The answer, prolix, argumentative, and lacking in essential averments, manifestly was intended to set up the defense that the defendant was induced to execute the mortgage by promises of the bank which, at the time of making them, it never intended to fulfill, based upon the well-recognized principle of law that the making of a promise (which has induced the execution of a contract), by one who had no intention at the time of performing it, constitutes a fraud on account of which the contract may be rescinded. The promises alleged by the defendant, as the inducement of the contract evidenced by the note and mortgage, which alone need to be considered, are: (1) That the note would be carried by the bank as renewed paper as long as the defendant desired it to be carried, upon payment of the interest; (2) that the bank would finance certain building and improvement plans of the defendant by which portions of the mortgaged property would be placed upon the market, the proceeds of sale to be applied to the note and mortgage, so as to enable ment, the said bank will release from the lien of the above-mentioned mortgage the residence lot above mentioned, designated in said mortgage as lot No. 1." After the service of the answer, the plaintiff, on December 12, 1924, gave the defendant notice of a motion to be made before his honor, Judge Shipp, at chambers, at Florence, on December 30, 1924, for an order striking out the answer as sham and irrelevant, and for judgment upon the ground that it was frivolous and not responsive to the pleadings. The matter came on to be heard by his honor, Judge Shipp, who filed an order dated January 10, 1924, granting the plaintiff's motion to strike out the answer, and referring the case to the master of Florence county to take the testimony and to report his conclusions of law and fact. From this order the defendant has appealed upon exceptions which fairly raise the matters hereinafter considered. The appeal is not to be determined by the application of either the "parol evidence rule," nor by the rule that details of a charge of fraud must be specifically stated, but by the principle above stated that the making of a promise (which has induced the execution of a contract), by one who had no Fraud-rescisintention at the sion of contract. time of performing it, constitutes a fraud, on account of which the contract may be rescinded; and by the further principle that, if a valid defense is imperfectly stated, the Pleading-imremedy of the plaintiff is a demurrer, and not a motion to strike out the answer. The situations of the respective perfect statement of defense -remedy. parties lend color to the contention of the defendant in reference to the alleged promises, the truth of which is not now before us in issue, nor the truth of the further essential element that the bank made them with the intention at the time of refusing to carry them out. The defendant who appears from the mortgage to have been the owner of considerable property, embarked in the automobile business, managed by others, he being the responsible member of the organization; a form of commercial enterprise, which in these latter days, compared with other commercial enterprises, is as the martial prowess of David compared with that of Saul: "Saul hath slain his thousands and David his ten thousands." The business had been wrecked by the dishonest conduct of the manager (as alleged), with a large debit to the bank. The bank naturally, was anxious for the debt to appear in better shape. The defendant appreciated his obligation, but in the deflation period was unable at the time to respond. Time, the hope of the financially distressed, was what he desired, and what he alleges the bank promised. The note was made payable in 12 months. The defendant (as he alleges) knew that he could not meet the note at maturity, and it is fair to assume that the bank also knew this fact. In addition to this, the defendant hoped and expected to subdivide his property, build houses, sell the lots, and apply the proceeds to the note. The execution of a mortgage to the bank would completely exhaust his resources for raising the necessary funds for this purpose, and it was on this account that he alleges that the bank promised to finance that project which was to their mutual advantage. Such contemporaneous agreements may have been obnoxious to "the parol evidence Evidence-parol to vary writing rule," if unaccom-effect of fraud. panied by any circumstances of deception; but if those promises were made to induce the execution of the mortgage with the concealed purpose to disregard them, the "Parol Evidence Rule" cuts no figure. In Coleman v. Stevens, 124 S. C. 8, 117 S. E. 305, the court adopted the statement by his honor, Judge Edward McIver, in his charge to the jury: "A future promise is not fraudulent, unless such a future. promise was part of a general . . . scheme to induce the signing of a paper or to make one act, as he otherwise would not have acted, to his injury." In 12 R. C. L. 257, it is said: "So, if through inducements held out by one person, even by means of a promise alone, another is influenced to change his position, so that he cannot be placed in statu quo, and will be seriously damaged unless the promise is fulfilled, then the refusal to perform is fraud. There is even authority to the effect that false representation as future events will constitute fraud, where those events depend upon the acts of the party making the representation and form the inducement whereby the other party is led into the transaction." to "When a promise is made with no intention of performance, and for the very purpose of accomplishing a fraud, it is a most apt and effectual means to that end, and the victim has a remedy by action or defense." Goodwin v. Horne, 60 N. H. 485. "A promise is usually without the domain of the law, unless it creates a contract, but if made when there is no intention of performance, and for the purpose of inducing action by another, it is fraudulent, and may be made the ground of relief." Herndon v. Durham & S. R. Co. 161 N. C. 650, 77 S. E. 683. In Hill v. Gettys, 135 N. C. 376, 47 S. E. 450, in ordering the cancellation of a mortgage, the court says: "The general rule in regard to promises is that they are without the domain of the law, unless they create a contract, breach of which gives to the injured party simply a right of action for damages, and not |