delivered the opinion of the Court:
On a former appeal from an order denying the appellant’s motion for judgment under the Seventy-third Pule of the Supreme Court of the. District, the order was affirmed without passing upon the sufficiency of the affidavit of defense in respect of the point now involved, because of the plaintiff’s neglect to remit the sum of $15.75 that was claimed as a credit in the said affidavit of defense, and the justice of which was conceded. 18 App. D. C. 584.
Upon the return of the cause to the court from whence it had been appealed, the appellant, who was plaintiff below, entered a remittitur of the amount of the said credit, and then renewed the motion for judgment for the remainder of the demand.
The suit was upon a note for $1,021.44, reduced hy credits allowed to about $744.
. That the plaintiff’s affidavit was in substantial compliance with Pule 73 was not denied; and the case turns wholly upon sufficiency of the affidavit of defense, which was sustained in the order denying the motion from which the appeal has been allowed.
Questions arising under the Seventy-third Pule have been so often considered and the general principles of its application so often stated, that we find it unnecessary, as regards the points herein involved, to do more than refer to our latest decision, wherein those principles are, to some extent, restated with citation of the supporting cases. Brown v. Ohio Nat. Bank, 18 App. D. C. 598.
Tested by' those principles, and' by familiar principles governing in actions of deceit, we are constrained to hold the *357affidavit an insufficient foundation for the denial of the motion for judgment.
This affidavit, which is copied in the report of the case on the former appeal (18 App. D. C. 584), sets up, substantially, the following grounds of defense:
1. E. L. Jordan was the president of the plaintiff company, which owns the note executed to its agent, the indorser, King. 2. Plaintiff had become the owner of certain goods and saloon fixtures in the Exchange and Ballard Hotel in Alexandria, Va., under purchase at a sale made under a chattel mortgage, for the sum of $600. 3. Jordan advised and urged defendant to buy said goods and fixtures and engage in business in the same place. 4. Defendant was unacquainted with the value of the stand as a business place and with the city of Alexandria, and relied upon the representations of Jordan, " who informed him that said place was a good business stand.” 5. Belying upon said representations, defendant purchased the property, executed the note and commenced business. 6. That said business was unprofitable from the start, and defendant abandoned the active management thereof and sold the stock in trade therein to one Edwin Dean, who agreed to pay affiant the sum of $5.11 monthly as rent for said goods and chattels, said sum being the amount of interest due monthly on said note.” 7. Failure to pay the note resulted in a sale under the chattel mortgage given to secure it, which realized $350. 8. Defendant expended “large sums of money in attempting to conduct said business and lost a considerable sum by reason of the venture.” 9. The chattels were not worth the sum paid for them, “ nor was the business a profitable one, and the said Jordan well knew the same, but notwithstanding, fraudulently persuaded this affiant to execute said note.” 10. That the object of said Jordan was to secure the payment of a debt due his company by the former owner of said chattels and occupant of said hotel.
When analyzed, the affidavit discloses but one direct charge of fraudulent misrepresentation of a fact claimed to have operated as a material inducement to the contract, namely: *358That the place wherein the fixtures were situated and to be used, was “ a good business stand.” Although it charges that the goods and fixtures purchased and received were not worth the price paid, there is no allegation of any misrepresentation or fraudulent concealment in respect of their quantity, quality, condition or real value.
We are of the opinion that this representation concerning the place as a good business stand, considered by itself, or in connection with the surrounding circumstances, amounted to nothing more than an expression of an opinion which, according to the great weight of authority, does not constitute such a fraud as is necessary to support the action of deceit. Gordon v. Butter, 105 U. S. 553, 557; 14 Am. & Eng. Encyc. of Law, 34; Idem, 118, and cases cited.
Erom what has been said, we are not to be understood as holding that a representation in the form of an expression of opinion may not, in the light of special surrounding circumstances, or by reason of fiduciary relations between the contracting parties, be sometimes regarded as the equivalent of a direct statement of a material fact. No such circumstances or conditions are here shown, and if they existed it was incumbent upon the defendant to state them in, at least, a general way.
The defendant does not allege the misrepresentation of-any facts concerning the location, surrounding buildings and population, and existing competition, or any misleading statement of the former and existing custom or profits of the business that he was about to acquire, which might enter into the expression of opinion and convert it into the fraudulent misstatement of a material fact.
On the other hand, it is to be presumed from serious omissions, as well as from some of the allegations, of the affidavit: 1. That the appellant merely owned the goods and fixtures of the saloon and was neither the owner nor lessee of the building ; 2. That though “ unacquainted with the value of said stand as a business place” and with the city of Alexandria, the defendant, who resided in Washington, was not unfamiliar with the saloon business, and had, and was not pre*359vented from utilizing, the opportunity to inspect the property and view the surroundings before purchasing; 3. It is expressly admitted that the appellant had acquired possession of the goods and fixtures through a mortgage sale resulting from the failure of the last occupant of the saloon.
Again, though it is a matter which would not probably affect the affidavit if otherwise sufficient, the defendant contents himself with saying that “ the business was unprofitable from the start,” without alleging a fact tending to show that this was due to the “ business stand ” alone and not to his own deficiencies. Moreover, he succeeded in reselling to another person who assumed the payment of the monthly interest on the note due appellant.
Taken as a whole, the affidavit of defense lacks that reasonable certainty and precision of statement, in matters susceptible thereof, which have, time and again, been declared essential to prevent summary judgment under the rule, where the plaintiff has put himself in position to demand its enforcement.
The judgment must be reversed with costs, and the cause remanded with direction to grant the motion for judgment.
Reversed.