Vulcan Metals Company v. Simmons Manufacturing Company

United States Court of Appeals for the Second Circuit · 1918 · Torts

248 F. 853 (2d Cir. 1918)

Updated July 23, 2026

TortsDeceitMisrepresentationPuffingRetractionRescissionfrauddealer's talk

Facts

In a transaction involving the takeover of a vacuum cleaner business, the seller allegedly made statements praising the cleaners' quality, efficiency, durability, economy, and serviceability, and also stated that the cleaners had never been put on the market or offered for sale. The buyer had full opportunity to examine and test the cleaner before contracting. Deposition testimony from western witnesses suggested that a number of cleaners had in fact been sold in scattered western states. The written contract also contained a recital stating that the seller had been engaged in manufacturing the machines and the buyer parties had been engaged in their sale.

Issue

Whether the seller's statements about the cleaners' quality and performance, and the statement that the cleaners had never been put on the market or offered for sale, could support an action for deceit. The court also considered whether the contract recital conclusively retracted any earlier false statement and whether the buyer could rescind while retaining the machines, tools, and patents.

Rule

When a buyer has full opportunity to inspect and investigate and the parties are on an equality, general statements by the seller about quality, serviceability, efficiency, durability, economy, or similar matters are mere puffing or dealer's talk and are not materially actionable as deceit, even if consciously false. By contrast, a specific factual representation such as that goods have never been put on the market or offered for sale may be actionable if false, material to the buyer's decision, made by a duly authorized agent, and not adequately retracted before execution of the contract. An adequate retraction before execution is a defense, but whether a supposed retraction in the contract was sufficient or actually noticed may be for the jury. A party seeking rescission must offer to return the property received unless it is shown to be without value.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Orion Workshop Tools agreed to sell its small sanding-machine business to Maya Deshpande, an experienced distributor of industrial equipment. Before signing, Maya spent a week inspecting the machines and running test jobs. Orion's president repeatedly told her the machines were "superb, unmatched, and incredibly durable," though he knew they often broke down.

If Maya later sues for deceit based only on those statements, what is the most likely result?

Explanation. The majority drew a line between general sales talk about quality, efficiency, durability, economy, and serviceability, and specific factual representations. Where the buyer is taking over a business, stands on an equality with the seller, and has ample chance to inspect and test the goods, such commendations are treated as puffing or dealer's talk, even if consciously false. They are not material representations on which the buyer has a right to rely in that setting.