On Motion for Rehearing.
Appellant earnestly insists that the alleged representations of Raymond O. Gee with respect to the (Brazilian bonds were representations of facts which would be a sufficient basis for the' relief sought in his petition. Appellant cites this statement from 26 Corpus Juris, § 20, p. 1079': “The form, of a statement as an expression of opinion is no defense if it was intended and accepted as a statement of fact.”
Also, the opinion of the Amarillo Court of Civil Appeals in Doolen v. Hulsey, 192 S. W. 364; also, Zundelowitz v. Waggoner (Tex. Civ. App.) 211 S. W. 598; Riggins v. Trickey, 46 Tex. Civ. App. 569, 102 S. W. 918, 921, which are to the same effect.
According to allegations in plaintiff’s petition, his purchase of the Brazilian bonds was for investment purposes only, with a view of realizing the interest accruing thereon, and that the statement made to him by Raymond O. Gee was an opinion relating to the value of those bonds for investment purposes.
After stating that plaintiff was unfamiliar and incompetent to make investments for income purposes, which fact was well known to the defendant’s officials, the petition contained these allegations;
“That the Fort Worth National Company, the defendant herein, is the investment division of the Fort Worth National Bank; that the officers of the Fort Worth National Bank and the officers of the defendant corporation, are, in the main, the same persons; that the officers of the Fort Worth National Bank and the officers of the Fort Worth National Company held themselves up to the public generally as men versed in matters of finance and capable of advising investors that might be seeking investment for their money for income purposes; that as a result of plaintiff’s acquaintance with the official personnel of the said Fort Worth National Bank, plaintiff, by reason of his confidence in said officials, believed them to be capable of giving advice with reference to investments; that plaintiff had confidence in the officers of the defendant corporation and believing them to be capable of giving advice with reference to matters concerning investments, and having confidence in their honesty, ability, competency and integrity, on September 13, 1928, deposited wifh the said Fort Worth National Bank the sum of $34,509.00, which fact was well known to defendant’s officers and representatives. * * *
“That in furtherance of its said idea that it could and would, by fraud and deceit, acquire a part of plaintiff’s funds which were then on deposit in said bank, defendant represented to plaintiff that defendant had some gold bonds issued by the United States of Brazil; that said Brazil bonds were safe and as valuable for investment purposes as gold bonds issued by the government of the United States; thht plaintiff could not lose anything by investing his money in said bonds; that plaintiff would receive a higher rate of interest than he would receive from United States bonds; that said interest would be promptly paid as and when due; that plaintiff would receive his interest twice each year by clipping the coupons from said bonds and depositing them with defendant for collection.”
Then follow allegations that plaintiff, having faith and confidence in Raymond O. Gee, believed such representations so made to be true and was induced thereby to purchase the bonds. According to further allegations in the petition, plaintiff held the bonds for investment purposes and collected interest and a part of the principal thereof during a period of nearly four years prior to the time he alleges he discovered that he had been deceived.
*250It thus appears that the opinions so expressed by Raymond O. Gee clearly were not representations of the market value of the bonds if defendant decided to resell them, but that they were in the nature of a speculation dependent upon future conditions and events concerning which no man can have any definite knowledge.
We quote the following from Black on Rescission and Cancellation, § 86, which was quoted with approval by the Court of Civil Appeals at El Paso in Starnes v. Motsinger, 278 S. W. 496, 498: “Sinqe that which lies in the future cannot be a matter of certain knowledge, it is held that all such representations must be taken and understood as mere expressions of opinion, and therefore their nonfulfillment cannot be treated as fraud.”
Also the following from 26 Corpus Ju-ris, § 21, p: 1084: “In order to justify a finding that a representation was one of fact as distinguished from opinion it must appear that the representation related to a matter susceptible of knowledge.”
In Putnam v. Bromwell, 73 Tex. 465, 11 S. W. 491, 492, which was a suit to cancel a deed on the ground of representation inducing the trade, our Supreme Court approved as correct an instruction to the jury by the trial court reading as follows: “A representation, to be material, must be in respect to an ascertainable fact, as distinguished from a mere matter of opinion, judgment, probability, or expectation. If it is vague and indefinite in its nature and terms, or is merely a loose, conjectural, or exaggerated statement, it is not a material representation.”
The motion for rehearing is overruled.