BISHOP, Sfi ACCESSK THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW ft THE LAW OF DECEIT " The foundation of this action is fraud and deceit in the defendant, and dam- age to the plaintiffs. . . . Fraud without damage, or damage without fraud, gives no cause of action ; hut where these two concur, an action lies. ... I agree that an action cannot be supported for telling a bare naked lie ; but that I define to be, saying a thing which is false, knowing or not knowing it to be so, and with- out any design to injure, cheat, or deceive, another person. Every deceit compre- hends a lie ; but a deceit is more than a lie on account of the view with which it is practised, its being coupled with some dealing, and the injury which it is calcu- lated to occasion, and does occasion, to another person. . . . "... The declaration states more than is necessary ; for fraudulenter with- out sciens, or sciens without fraudulenter, would be sufficient to support the action. But ... the fraud must be proved." — Buller, J., in Paslerj v. Free- man, 3 T. R. 51, 56, 60. " It does not follow, because the jury were of opinion that the persons recom- mended were unworthy of credit, that the defendant, with a full knowledge of all the facts proved, was of the same opinion. . . . There is no standard of opinion, except in very clear cases." — Wilde, J., in Tryon v. Whitmarsh, 1 Met. 1, 8. THE LAW OF DECEIT AND INCIDENTS IN ITS PRACTICE ILLUSTRATED BY AN ANALYSIS OF MASSACHUSETTS CASES, AND BY REFERENCES TO SOME OTHER AUTHORITIES BY CHARLES E. GRINNELL OF THE BOSTON" BAR AUTHOR OF "A STUDY OF THE POOR DEBTOR LAW OF MASSACHUSETTS " BOSTON LITTLE, BROWN, AND COMPANY 1886 Copyright, 1886, By Charles E. Grinnell. I University Press: John "Wilson and Son, Cambridge. TO MY FRIEND JOHN BARTLETT 670829 PEEFACE. It is no disparagement to learned writers or to able publishers to suggest that it would be a convenience in practice if much of the law were written over again, in the form of books upon the law of each State taken separately. Thus only can the peculiar development of the law of each State be fully and freely expressed in the most trustworthy way for use in practice. This is true not merely of questions about which the courts of several States differ widely, but also of titles of the law concerning which the courts in most jurisdic- tions are pretty nearly agreed. The only law actually existing anywhere is local ; the only law really prac- tised in any court or enforced in any jurisdiction is local ; the only law authoritatively stated or held by any person is local. When a law becomes universal, it is because it has been locally developed somewhere, and is found to be locally useful everywhere. Cer- tainly we need encyclopedic introductions to profes- sional studies, exhaustive accounts of special topics, histories of law, and philosophies of such history ; and I am very far from withholding my admiration 8 PREFACE. for the excellent essays in those directions by some of our most learned neighbors. But their valuable works would be even more useful in practice if the authors could find guidance and warning in essays of local practitioners, written out of the necessity of ap- plying the law of their own States to the facts of the daily life of their respective localities. Digests, even when they are as good as that of Massachusetts, do not undertake to explain in detail the connection and application of the cases. Their function is distinctly general. Immense and growing as is the law of Fraud, and strong as the prevailing tendency is in the United States and in England to give more and more consid- eration to equitable views and to liberal rules in ap- plying them, there is no escape, either in theory or in practice, from nice distinctions of law or of fact, or from peculiarities inherent in local necessities. The law of Deceit, for instance, is often and truly said by judges and by text-writers to be pretty well settled ; but, nevertheless, there constantly arise in its consid- eration necessary points which are among the nicest distinctions known in practice or found in the books. And now, while the ancient history of law is being so industriously searched, the precise and difficult questions of modern practice are rendered not less, but more valuable, even to the historical student ; for he cannot imagine, with much truth, what a rule of law amounted to in the life of man ages ago, unless PREFACE. 9 he sees to-day, or learns from men who do see, how the present laws work in the lives of individuals and the community. Hence the historical spirit also leads to a particular examination and statement of local law and practice. Indeed, the growing supply of this means of relief from the embarrassment caused by the numerous reports seems to be a necessary move- ment of the time. Massachusetts decisions are among the leading American cases upon the law of Deceit. And, since that title of the law of Fraud is so fully developed in this Commonwealth, a separate and detailed study of the Massachusetts cases as a distinct body of law and practice may serve not only here, but elsewhere, as a definite standpoint from which to consider what- ever belongs to the law of Deceit wherever it may appear. Accordingly, having made such a study for my own use in practice, and having found it convenient, I hope that it will be of assistance to others in classifying cases, and in comprehending such as are difficult to classify. I have read and analyzed every case which I have cited, and have stated the results of such ex- amination by explanations of conduct, by outlines of principles, and by detailed accounts of decisions. Readers who are familiar with the law may find it most convenient to look first at the Outlines, at the end of the first chapter, which are the key to the book. References to the Outlines, and to cases which 10 PREFACE. may be classified under them, are given in the text and notes of the other chapters. The constant use which is made of my Study of the Poor Debtor Law of 31assachusetts, which was an effort in the same direction, encourages me to offer this little book as another attempt to serve the profession. I take pleasure in acknowledging that much light has been thrown upon my work by the learning and skill of my able adversaries in court, by the kind suggestions of friends in private, and especially by the valuable criticism of my friend George Pellew, Esq., of the bar of Norfolk County, while the book was being printed. C. E. G. 30 Court Street, Boston, February, 1886. TABLE OF CONTENTS. Page PREFACE 7 TABLE OF CASES CITED 19 LIST OF BOOKS 25 CHAPTER I. EXPLANATION OF THE GENERAL NATURE OF DE- CEIT, AND OF PARTICULAR ACTS CONSTITUTING IT, WITH OUTLINES SHOWING WHEN AN ACTION LIES AND WHEN AN ACTION DOES NOT LIE FOR DECEIT. (Page 29.) 1. Explanation. Plaintiff the deceived ; other false representations excluded. Damnum accrued. Defendant the deceiver. Conduct and its meaning. Responsibility of both parties. Intention to deceive. General mode of deceit. Particular forms of deceit. Known falsehood. As of own knowledge. Supposed peculiar knowledge or means of knowledge. Inducement to plaintiff's reliance. Inducement need not be sole or chief. Materiality of fact represented. Ordinary prudence of plaintiff. Opinion not representation of fact. Recital giving author not action- able, unless partner or agent. Seller's statements and privileged fraud. Seller's opinion ; description ; val- uation. Seller's false statement of cost or offer to him. Limit to privileged fraud of seller. Limit to buyer's right of action ; equal knowledge or means of knowledge ; negligence. Damnum absque injuria. 12 TABLE OF CONTENTS. Outline I. When an Action for Deceit lies. (Page 29.) 1. The defendant's conduct. 2. The defendant's knowledge or claim to, or means of knowl- edge, being the scienter. 3. The defendant's deceit and in- ducement of the plaintiff, being the injuria. 4. The plaintiff's reliance. 5. The plaintiff's hurt, being the damnum. 6. The connection between the injuria and the damnum. § 2. Outline II. When an Action for Deceit does not lie. (Page 30.) Good faith of defendant. A. Express opinion, belief, or estimate. B. Implied opinion, belief, or estimate. C. Disclosure of source of representation. Bad faith of defendant. A. General description. B. Cost or offer to seller. C. Equal knowledge and negligence of plaintiff. Discussion of 2, B, cost or offer to seller. Note. CHAPTER II. MODERN CHANGES IN REMEDIES AND THEIR RELA- TION TO THE STATUTE OF FRAUDS. (Page 53.) § 3. Action of deceit and actions for deceit. § 4. Tort in Massachusetts statute. § 5. English Statute of Frauds ; Pasley v. Freeman. § 6. Lord Tenterden's Act ; Mas- sachusetts statutes. § 7. Writing not necessary. § 8. Writing necessary. CHAPTER III. DECEIT IN CONTRACT. RECOUPMENT. - RESCISSION AND (Page 5S.) § 9. Tort to be proved. §10. Assumpsit; ex aquo et bono ; materiality. § 11. Partial failure of consider- ation ; rescission notwith- standing guaranty. TABLE OF CONTENTS. 13 § 12. Reasonable time for rescis- sion. § 13. Seller's statements ; recoup- ment ; opinion ; knowl- edge ; value ; belief. § 14. Giving source of informa- tion. § 15. Defence of surety. § 16. Time of representation. § 17. Buyer's negligence. § 18. Judgment by deceit. § 19. Distinction between war- ranty and representa- tion ; condition and im- plied warranty ; deceit in equity. CHAPTER IV. sellers' statements and privileged fraud. (Page 64.) § 20. Sellers' statements. §§ 21-22. Distinction between sellers and third parties in their relations to buyers. § 23. Representations of value. § 24. Of the cost to the seller. § 25. Barter. §§ 26, 27. Equal opportunities. § 28. Sellers' liability for false representation of fact. § 29. Note. CHAPTER V. REPRESENTATIONS AND MODES OF REPRESENTATION. (Page 6S.) § 30. Knoicledge and means of it. § 31. Peculiar knowledge. § 32. Ordinary means of knowl- edge ; ignorant lie. § 33. Equal knowledge. § 34. Concealment. Suggestion of falsity. § 35. Silence ; direct fraud and indirect deceit. § 36. Opinion ; belief; estimate. § 37. Implied and express opin- § 38. Belief and estimate. §§ 39-41. Good and bad faith in representations which are obviously mere expres- sions of opinion. § 42. Time of representation. §§ 43, 44. Time of making. § 45. Continuing representation. § 46. Alternative. Plaintiff's op- tion of reliance upon either. § 47. Note. CHAPTER VI. INDUCEMENT AND INJURIA. (Page 81.) § 48. Partial inducement ; additional inducement to forbear inquiry. § 49. Note. 14 TABLE OF CONTENTS. CHAPTER VII. RELIANCE AND NEGLIGENCE. (Page 83.) §§ 50, 51. Negligent reliance of vendee. § 52. Negligence of vendee as to vendor's rights. § 53. Note. CHAPTER VIII. LOSS AND DAMNUM. (Page 85.) § 54. Necessity of past damage. § 55. Remoteness ; indefiniteness ; contingency. §56. Note. CHAPTER EX. PRINCIPAL AND AGENT. (Page 87.) §§ 57, 58. Principal's knowledge immaterial. § 59. Agent with beneficial inter- est. § 60. Inducing disobedience of agent. § 61. Partners' responsibility for each other. § 62. Tenancy in common not fiduciary. § 63. Note. CHAPTER X. PARTIES. (Page 89.) § 64. Introductory. § 65. Several purchasers ; abate- ment. § 06. Joint owners ; partners. § 67. Joint defendants ; co-owners. § 68. Note. TABLE OF CONTENTS. 15 CHAPTER XL PLEADING. (Page 91.) § 69. Declaration. Fraudulent in- ducement to forbear in- quiry. § 70. Value at certain time. § 71. Scienter, express and im- plied. § 72. Joining tort and contract. § 73. Amendment. Surplusage. §74. Ansiver. Tort and contract ; discharge in bankruptcy. § 75. Contract under seal. § 76. Surety ; estoppel. § 77. Fraud pleaded against as- signee. § 78. Effect of answer giving notice of defence in tort only. § 79. Effect of the record upon the answer. § 80. Construction of answer af- ter verdict. § 81. Demurrer. Survival of ac- tion. § 82. Variance. Form of con- tract. § 83. Gravamen is deceit to hurt, not advantage to deceiver. § 84. Note. CHAPTER XII. PRACTICE. (Page 96.) §§ 85, 86. Nonsuit ; amendment ; surprise. § 87. Trying part of count. § 88. Election of count ; evi- dence ; discretion. § 89. Weight of evidence. § 90. Proportion of damages. § 91. Withdrawing from jury ; discretion ; waiver of mo- tion. § 92. Special question to jury. § 93. Note. CHAPTER XIII. PROOF. (Page 100.) § 94, 95. Preponderance of evi- dence. § 96. Burden of proof when deceit is a defence. § 97. Implied scienter; good rea- son for knowledge not knowledge. § 98. Variance ; surplusage ; mis- § 99. trial ; substantial proof ; Pennsylvania law of de- ceit in sale ; effect of cer- tain concealment. Verdict against evidence ; involuntary payment ; constraint. § 100. Note. 16 TABLE OF CONTENTS. CHAPTER XIV. EVIDENCE, AND QUESTIONS ARISING BY OBJECTIONS TO EVIDENCE. (Page 106.) §§ 101, 102. Evidence as affected by pleading. Deceit in contract ; counts. § 103. Tort and contract ; bar to cross-action in tort. § 104. Fraud; course of dealing. § 105. Conversation ; words not set out. § 106. Infancy as defence. § 107. Answer without specifica- tion. § 108. Usage ; laches. § 109. Examination of witness. Leading questions ; in- ducement; reliance. § 110. Cross-examination as to books. § 111. Knowledge. Relations to business. § 112. Statements as of own knowledge ; proof of ig- norance, when not ad- missible ; when admis- sible. §§ 113, 114. Scienter and circum- stances. § 115. Representation of fact, as to one's own skill. § 116. As to price paid by third party. § 117. Inducement. Express and direct testimony to. § 118. Written inducement by re- ceipt. § 110. Undue influence. § 120. Leading question and cir- cumstances. § 121. Contract. § 122. Oral evidence of fraud be- fore written contract. § 123. Deed and parol repug- nant. § 124. Concealment. § 125. Expert testimony. As to accident or design. § 126. Evidence in rebuttal. § 127. Computations from ac- counts. § 128. Principal and agent. Repre- sentation by general agent contrary to in- structions. § 129. Admission by attorney in declaration. § 130. Agent of corporation. § 131. Agent of plaintiff and de- fendant ; circumstances. § 132. Damages. To avoid multi- plicity of suits. § 133. When no injuria is proved. § 134. Record of judgment and executions as evidence. § 135. Sample. § 136. Circumstances. Discretion ; rebutting immaterial evi- dence ; exception. § 137. Inducement. § 138. Understanding. § 139. Subsequent correspond- ence. § 140. Evidence of articles of same make. § 141. Immediate fraudulent dis- posal of goods. § 142. Subsequent transactions. § 143. Adjudication in bank- ruptcy and proofs of debts. § 144. Knowledge. § 145. Value; immateriality. TABLE OF CONTENTS. 17 § 146. Evidence of impulses as showing intention; fraud. § 147. Convenience for examining goods ; absence of a party. § 148. Value and price. § 149. Deed without proof of ex- ecution as evidence of representation. § 150. Whole conversation. § 151. Fraudulent purpose of bankrupt. §152. §153. §154. §§ 155 : §157. § 158. §159. Res inter alios ; subsequent declaration. Res gestae. Common scheme of fraud ; res inter alios. i 156. Bank-books as to in- solvency ; knowledge of insolvency. False return ; judgment by fraud. General purpose of fraud. Note. CHAPTER XV. CHARGE TO THE JURY. (Page 126.) §160. §161. §162. §163. §164. § 165. §166. Introductory. Weight of evidence. No evidence by defendant ; presumption. Omission to instruct on law ; omission to instruct after request ; waiver ; statement by counsel. Misleading distinctions ; opinion and fact. Evidence not conclusive. Issues, scienter; requiring excess of proof ; implied intent. § 167. Predominant motive unne- cessary. § 168. Inference from circum- stances. § 169. Words not alleged, but proved. § 170. Opportunity to examine. § 171. Representations of agency. § 172. Relevancy. § 173. Means of knowledge. § 174. Concealment. § 175. Materiality ; fact for jury. § 176. Omission to request. § 177. Note. CHAPTER XVI. EXCEPTIONS. (Page 134.) § 178. Introductory. § 179. Clearness and precision. § 180. Presumption in favor of ruling. §§ 181, 182. Specific objection at trial. § 183. General request and ex- ception. § 184. Amendment. § 185. Note. 18 TABLE OF CONTENTS. CHAPTER XVII. RES ADJUDICATA. (Page 137.) § 186. Election of remedy ; waiver of remedy ; cross-actions. §§ 187, 188. Judgments in contract barring tort, and in case or tort barring contract. § 189. Note. CHAPTER XVIII. MEASURE OP DAMAGES. (Page 141.) §§ 190, 191. The same as the rule in warranty ; price at sale by plaintiff ; price to plaintiff and price got by defendant ; irrele- vancy, of ownership. § 192. Market value ; profit. §§ 193, 194. Recoupment ; cross- actions. § 195. Actual and probable dam- age ; election. 8 196. Note. CHAPTER XIX. MISCELLANEOUS REMEDIES AND DEFENCES. (Page 146.) § 197. Fraud the gist; express warranty. § 198. Damage partly indirect or remote. § 199. Attachment and represen- tation of law. § 200. Concealment and Statute of Limitation. §§201, 202. Neglect and deceit ; executed contract ; in- ducement to agreement. § 203. Deceit not breach of trust or contract ; equity ; third parties deceived. § 204. Statutory remedy not ex- clusive ; deceit and crim- inal statutes. § 205. Partner exception to priv- ilege of recital. § 206. Contract and deceit on Sunday. § 207. Discharge in bankruptcy no bar. § 208. Survival of action ; dam- age to real or personal estate ; abatement by death. §209. Note. TABLE OF CASES CITED. SECTIONS ARE REFERRED TO. SECTION Allen v. Truesdell, 135 Mass. 75 : 198 Baker v. Jewell, 6 Mass. 460 65 Bannister v. Alderman, 111 Mass. 261 112 Beach v. Bemis, 107 Mass. 498 113 Beatty v. Fishel, 100 Mass. 448 96 Belcher v. Costello, 122 Mass. 189 .... 1, 2, 7, 28, 116, 145, 164 Bennett v. Ryan, 9 Gray, 204 122 Bierce v. Stocking, 11 Gray, 174 9 Blair v. Laflin, 127 Mass. 518 2,115 Boston D. Co. v. Florence M. Co., 114 Mass. 69 203 Bowen v. Carter, 124 Mass. 426 44, 51 Bradley v. Fuller, 118 Mass. 239 55 Bradley v. Poole, 98 Mass. 169 91 Bradley v. Ilea, 14 Allen, 20 ; s. c. 103 Mass. 188 206 Bridge v. Batchelder, 9 Allen, 394 11 Briggs v. Humphrey, 5 Allen, 314 96 Brown v. Bigelow, 10 Allen, 242 191 Brown v. Castles, 11 Cush. 348 1, 2, 31, 204 Brown v. Leach, 107 Mass. 364 2, 17, 131, 135, 180 Brown v. Pease, 104 Mass. 291 (303) 87, 89, 138, 161 Burnett v. Smith, 4 Gray, 50 103, 186, 187 Burns v. Lane, 138 Mass. 350 1, 31, 199 Buttrick v. Park, 103 Mass. 501. (See David v. Park.) Carey v. Guillow, 105 Mass. 18 193 Carr, Ex parte, 3 Ves. & B. 108 (110) 5 Carroll v. Hayward, 124 Mass. 120 97 Casco M. Co. v. Dixon, 3 Cush. 407 52, 108 20 TABLE OF CASES CITED. SECTION Chelsea v. Goodscll, 107 Mass. 149 104 Cheney v. Gleason, 125 Mass. 166 ; s. c. 117 Mass. 557 . . 162, 191 Coddington v. Goddard, 16 Gray, 486 35 Cole v. Cassidy, 138 Mass. 437 HI, 173 Collins v. Denison, 12 Met. 549 106 Commonwealth v. Woods, 11 Met. 59 204 Cook v. Castner, 9 Cush. 266 . 1, 2, 58, 90, 132, 184, 186, 193, 194, 205 Cooper v. Landon, 102 Mass. 58 78 Cooper v. Lovering, 106 Mass. 77 1, 2, 14 Cornell v. Jackson, 3 Cush. 500 191 Comfoot v. Fowke, 6 M. & W. 358 58 Cowley v. Dobbins, 136 Mass. 401 40 Crafts v. Belden, 99 Mass. 535 . . 88 Cutting v. Tower, 14 Gray, 183 . . .< 208 Dana v. Kemble, 17 Pick. 545 10, 99 Daniels v. Hudson River F. I. Co , 12 Cush. 416 19 Davenport v. N. E. M. F. I. Co., 6 Cush. 340 9 David v. Park, 103 Mass. 501 1» 31 Davis v. Elliott, 15 Gray, 90 185 Dyer v. Lewis, 7 Mass. 284 71 Emerson v. Brigham, 10 Mass. 197 1, 2, 33 Everett v. Gray, 1 Mass. 101 193 Farley v. Rodocanachi, 100 Mass. 427 202 Fisher v. Mellen, 103 Mass. 503 1,2,83,98,112 Fogg v. Pew, 10 Gray, 409 I 6 , 43 Freeman v. Venner, 120 Mass. 424 . 54 French v. Vining, 102 Mass. 132 1, 35, 208 Goodsell v. Trumbull, 135 Mass. 99 107 Gordon v. Parmelee, 2 Allen, 212 ; s. c. 15 Gray, 413 . 2, 13, 95, 129 Grant v. Mellen, 134 Allen, 335 196 Harrington v. Stratton, 22 Pick. 510 132,186 Hartford L. S I. Co. v. Matthews, 102 Mass. 221 .. . 37, 48, 71, 92 Haskins v. Warren, 115 Mass. 514 151, 152, 156, 158 Hayward v. Draper, 3 Allen, 551 98, 126 Hazard v. Irwin, 18 Pick. 95 15, 37, 75, 76, 79, 80 Iledden v. Griffin, 136 Mass 229 195, 198 TABLE OF CASES CITED. 21 SECTION Hemmer v. Cooper, 8 Allen, 334 2 24 Hogan v. Wixted, 138 Mass. 270 203 Holbrook v. Burt, 22 Pick. 546 11, 12, 77 121, 163 Homer v. Perkins, 124 Mass. 431 13 25 Horton v. AVeiner, 124 Mass. 92 151 153 Jewett v. Carter, 132 Mass. 335 58 102 Jones v. Walcott, 2 Allen, 247 123, 134, 171, 172 195 Jordan v. Farren. (See Cook v. Castner.) Jordan v. Osgood, 109 Mass. 457 127 154 155 Kidney v. Stoddard, 7 Met. 252 35 Kimball v. Comstock, 14 Gray, 508 8 King v. Eagle Mills, 10 Allen, 548 9, 37, 163 Kline v. Baker, 106 Mass. 61 ; s. c. 99 Mass. 253 . 95, 98, 120, 141, 142 Knight v. Peacock, 116 Mass. 362 109 Lamb v. Stone, 11 Pick. 527 55 Leggate v. Moulton, 115 Mass. 552 81,208 Levin v. Vannevar, 137 Mass. 532 139 Litchfield v. Hutchinson, 117 Mass. 195 .... 1, 2, 32, 37, 71, 97 Lobdell v. Baker, 1 Met. 193 ; s. c. 3 Met. 469 . . . 35, 73, 128, 146 Locke v. Stearns, 1 Met. 560 61 Mann v. Blanchard, 2 Allen, 386 8 Manning v. Albee, 11 Allen, 520 ; s. c. 14 Allen, 7 2, 13, Marsh v. Billings, 7 Cush. 322 1 Martin v. Roberts, 5 Cush. 126 11 Matthews v. Bliss, 22 Pick. 48 48, 62, 148, 165, 167, 191 May v. Western U. T. Co., 112 Mass. 90 84 M'Rae v. Mattoon, 13 Pick. 53 18 McKinney v. Whiting, 8 Allen, 207 8 Medbury v. Watson, 6 Met. 246 1, 2, 7, 21, 66, 86, 191 Merriam v. Cunningham, 11 Cush. 40 106 Milliken v. Thorndike, 103 Mass. 382 1, 13, 201 Mooney v. Miller, 102 Mass. 217 2, 23, 26 Moore v. Cains, 116 Mass. 396 89, 161, 175 Morgan v. Bliss, 2 Mass. Ill 54, 86 Morse v. Dearborn, 109 Mass. 593 168 Morse v. Hutchins, 102 Mass. 439 72, 74, 191 Morse v. Shaw, 124 Mass. 59 164 22 TABLE OF CASES CITED. SECTION Newhall v. Pierce, 115 Mass. 457 174 Norton v. Huxley, 13 Gray, 285 7, 98, 188 Nowlan v. Cain, 3 Allen, 261 1, 2, 31 Oliver v. Sale, Quincy, 29 28 Packard v. Clapp, 11 Gray, 124 170 Packard v. Pratt, 115 Mass. 405 82 Packer v. Lockman, 115 Mass. 72 153, 181 Page v. Bent, 2 Met. 371 2, 13 Parker v. Moul ton, 114 Mass. 99 2,23,48,09 Parsons v. Winchell, 5 Cush. 592 61, 67 Pasley v. Freeman, 3 Term R. 51 1, 5 Patten v. Gurney, 17 Mass. 182 22, 66 Pearson v. Howe, 1 Allen, 207 97 Pease v. Brown. (See Brown v. Pease.) Pedrick v. Porter, 5 Allen, 324 41, 105, 117, 150, 169 Penn. M. L. I. Co. v. Crane, 134 Mass. 56 118, 137, 175 Percy v. Bibber, 134 Mass. 404 139 Perkins v. Bailey, 99 Mass. 61 12 Pierce v. Jackson, 6 Mass. 242 157 Pike v. Fay, 101 Mass. 134 37 Poland v. Brownell, 131 Mass. 138 2, 27, 48, 69, 133 Potts v. Cliapin, 133 Mass. 276 1, 34, 35 Prescott v. Wright, 4 Gray, 461 124 Putney v. Hardy, 99 Mass. 5 98 Read v. Hatch, 19 Pick. 47 208 Robeson v. French, 12 Met. 24 206 Safford v. Grout, 120 Mass. 20 . . . 48, 109, 114, 143, 144, 179, 180 Salem I. R. Co. v. Adams, 23 Pick. 256 . . 2, 130, 147, 170, 187, 197 Savage v. Norcross. (See Savage v. Stevens.) Savage v. Stevens, 126 Mass. 207 ; s. c. 128 Mass. 254 . . 1, 2, 32, 51 Seavey v. Potter, 121 Mass. 297 19 Sibley v. Hulbert, 15 Gray, 509 7, 106, 192 Silver v. Frazier, 3 Allen, 382 60 Simmons v. Lawrence D. Co., 133 Mass. 298 73 Skinner v. Brigham, 126 Mass. 132 149 Somes v. Skinner, 16 Mass. 348 92, 119 Springer v. Crow ell, 103 Mass. 65 191 TABLE OF CASES CITED. 23 SECTION Spurr v. Benedict, 99 Mass. 463 19 Squier v. Plunkett, 11 Gray, 11 70 Stiles v. White, 11 Met. 356 67, 191 Stockwell v. Silloway, 113 Mass. 384 158 Stone v. Denny, 4 Met. 151 2, 37, 38, 125 Stubbs v. Johnson, 127 Mass. 219 164, 183 Sullivan v. Fitzgerald, 12 Allen, 482 88 Taft v. Montague, 14 Mass. 282 193 Teague v. Irwin, 134 Mass. 303 ; s. c. 127 Mass. 217 . . 72, 102, 110, 112, 136 Thaxter v. Bugbee, 5 Cush. 221 45, 46 Tryon v. Whitmarsh, 1 Met. 1 37, 97 Tucker v. White, 125 Mass. 344 2, 39 Tuckwell v. Lambert, 5 Cush. 23 59, 195 Turner v. Atwood, 124 Mass. 411 207 Tuttle v. Brown, 4 Gray, 457 191 Veasey v. Doton, 3 Allen, 380 2, 20, 1G4 Walker v. Soule, 138 Mass. 570 200 Waters' P. H. Co. v. Smith, 120 Mass. 444 140 Webster v. Larned, 6 Met. 522 40 Wellington v. Small, 3 Cush. 145 55 Wells v. Prince, 15 Gray, 562 8, 182 White v. Sawyer, 16 Gray, 586 61, 67, 192 Whitehead v. Kitson, 119 Mass. 484 203 Whitney v. Blanchard, 2 Gray, 208 201 LIST OF BOOKS. The following books may be consulted with advantage under the heads of Deceit, Fraud, False Eepresentations, Conditions, Warranty, Statute of Frauds, Lord Tenterden's Act, and other heads which are suggested by their titles. Massachusetts Digest. By Edmund H. Bennett, Russell Gray, and Henry W. Swift. (1881.) And Supplement. By Charles F. Williams. (1884.) Article entitled " Misrepresentations " (Anonymous, but by Clement Hugh Hill), in " American Law Review," vol. iii. p. 430. (1868-69.) Leading Cases on the Law of Torts. By Melville M. Bigelow. (1875.) Elements of the Law of Torts. By Melville M. Bigelow. (1878.) A Treatise on the Law of Torts. By Thomas M. Cooley. (1879.) The Law of Torts. By Francis Hilliard. 4th ed. (1874.) A Treatise ox the Law of Torts. By C. G. Addison. 5th English edition. By Lewis W. Cave. (1879.) American edition, by H. G. Wood (1876), of previous English edition. A Summary of the Law of Torts. By Arthur Underbill, assisted by Claude C. M. Plumptre. 3d English edition. (1881.) 1st American edition. By Nathaniel C. Moak. (1881.) The Doctrine of Damnum Absque Injuria. By Edward P. Weeks. (1879.) The Law of Fraud. By Melville M. Bigelow. (1877.) A Treatise on the Law of Fraud and Mistake. By William Williamson Kerr. American edition, by Orlando F. Bump. (1S72.) 2d English edition. (1883.) The Law of Contracts. By Theophilus Parsons. 7th edi- tion, by William V. Kellen. (1883.) 26 LIST OF BOOKS. Principles of the Law of Contracts. By Theron Metcalf. (1883.) A Summary of the Law of Contracts. By C. C. Langdell. (1880.) Principles of Contract. By Frederick Pollock. 4th Eng- lish edition (1885), and 1st and 2d (1885) American editions, by Gustavus H. Wald. An Elementary Digest of the Law of Contracts. By Stephen Martin Leake. (1S78.) A Treatise on the Law of Contracts. By Joseph Chitty, Jr. 11th American edition, by J. C. Perkins. (1874.) A Treatise on the Law of Sale of Personal Property. By J. P. Benjamin. 1st American edition, by J. C. Perkins. (1875.) 4th American edition, by Charles L. Corbin (1883) ; and another 4th American edition, by Edmund H. Bennett. (1884.) The Law of Vendors and Purchasers of Estates. By Edward Sugden (Lord St. Leonards). 8th American edition, by J. C. Perkins. (1873.) A Treatise on the Law of Warranties in the Sale of Chattels. By Arthur Biddle. (1881.) Commentaries on the Law of Agency. By Joseph Story. 9th edition, by Charles P. Greenough. (1882.) Cases on the Measure of Damages. By Henry Dwight Sedgwick. (1878.) A Treatise on the Measure of Damages. By Theodore Sedgwick. 7th edition, by Arthur G. Sedgwick and G. Willett Van Nest. (1880.) A Treatise on the Law of Damages. By J. G. Sutherland. (1S82, 1883.) Treatise on Damages. By John D. Mayne and Lumley Smith. 4th English edition (1884) ; and American edition, by H. G. Wood (1880). A Treatise on the Rules for the Selection of the Parties to an Action. By A. V. Dicey. American edi- tion, by J. Henry Truman. (1S76.) A Treatise on the Law of Judgments. By A. C. Freeman. (1881.) Res Adjudicata and Stare Decisis. By J. C.Wells. (187S.) LIST OP BOOKS. 27 Commentaries on American Law. By James Kent. 13th edition, by Charles M. Barnes. (1884.) The Common Law. By O. W. Holmes, Jr. (1881.) Commentaries on the Laws of England. By Sir William Blackstone. American edition, by George Sharswood. (1872.) American edition, by Thomas M. Cooley. (1884.) A Selection of Leading Cases. By John William Smith. 8th American edition, by J. I. Clark Hare, H. B. Wallace, Lucius S. Landreth, and Francis A. Lewis. (1885.) A Treatise on the Law of the Statute of Frauds. By Henry Reed. (1SS4.) A Treatise on the Construction of the Statute of Frauds. By Causten Browne. 4th edition, with the aid of Alex. Porter Browne. (1880.) Lectures on Jurisprudence. By John Austin. 3d English edition, by Robert Campbell. (See on the Statute of Frauds.) (1869.) A Collection of Important English Statutes, showing the Principal Changes in the Law of Property; to- gether WITH SOME OTHER ENACTMENTS OF COMMON REF- ERENCE. Collected by E.L.B., F.B., E. M. P. Cambridge. 1880. (See for Statute of Frauds and Lord Tenterden's Act.) Chitty's Treatise on Pleading. 16th American edition. By J. C Perkins. (1876.) THE LAW OF DECEIT. CHAPTER I. EXPLANATION OF THE GENERAL NATURE OF DE- CEIT, AND OF PARTICULAR ACTS CONSTITUTING IT, WITH OUTLINES SHOWING WHEN AN ACTION LIES AND WHEN AN ACTION DOES NOT LIE FOR DECEIT. § 1. Explanation. Plaintiff the deceived ; other false representations excluded. Damnum accrued. Defendant the deceiver. Conduct and its meaning. Responsibility of both parties. Intention to deceive. General mode of deceit. Particular forms of deceit. Known falsehood. As of own knowledge. Supposed peculiar knowledge or means of knowledge. Inducement to plaintiff's reliance. Inducement need not be sole or chief. Materiality of fact represented. Ordinary prudence of plaintiff. Opinion not representation of fact. Recital giving author not action- able, unless partner or agent. Seller's statements and privileged fraud. Seller's opinion ; description ; val- uation. Seller's false statement of cost or offer to him. Limit to privileged fraud of seller. Limit to buyer's right of action ; equal knowledge or means of knowledge ; negligence. Damnum absque injuria. Outline I. When an Action for Deceit lies. 1. The defendant's conduct. 2. The defendant's knowledge or claim to, or means of knowl- edge, being the scienter. 3. The defendant's deceit and in- ducement of the plaintiff, being the injuria. 4. The plaintiff's reliance. 5. The plaintiff's hurt, being the damnum. 6. The connection between the injuria and the damnum. 30 THE LAW OF DECEIT. §2. Outline II. When an Action for Deceit does not lie. 1. Good faith of defendant. A. Express opinion, belief, or estimate. B. Implied opinion, belief, or estimate. C. Disclosure of source of representation. 2. Bad faith of defendant. A. General description. B. Cost or offer to seller. C. Equal knowledge and negligence of plaintiff. Discussion of 2, B, cost or offer to seller. Note. § 1. The law treated of in this book is that of deceit proper, in actions for which the plaintiff is one who has been deceived to his hurt by the de- fendant. 1 Deceit is a kind of fraud, and in some of the text-books it is treated with false representations in general, under the head of Fraud and Deceit. 2 Some false representations which are not included under deceit proper are nevertheless actionable at law or in equity ; for instance, at law, in cases where the person deceived was not the plaintiff bat a third party, and when the damage caused by the fraud nevertheless fell upon the plaintiff. This happened at law where a hackman falsely pretended that he drove for the Revere House, and so took passengers who otherwise would have employed the plaintiff, who did drive for that house. 3 Slander of title and imitation of trademarks are also instances. 4 In equity the infinite variety of fraud involves false represen- tations of many kinds. But deceit proper concerns 1 See Outline I. below in this chapter. 2 Medbury v. Watson, 6 Met. 246. 3 Marsh v. Billings, 7 Cush. 322. 4 See Bigelow's Leading Cases on the Law of Torts (1875), "Deceit," pp. 42-72. EXPLANATION, ETC. 31 false representations by which the plaintiff has been deceived. And it may be of some assistance to read- ers who are not familiar with the law to make a somewhat full statement here of what is essential to an action for deceit, in view of the cases which have been cited throughout the book, upon the variety of points that have been raised. Within the limits, then, of deceit proper, and before any action is brought, the tort deceit takes place when, speaking generally, one injures another by de- ceiving him to his hurt. 1 In such a tort the deceit is the injuria, the hurt is the damnum. Of course, in the actual occurrence the deceit must precede the damage, or be its contemporaneous cause. And before an action for the deceit will lie, the damage caused by the deceit must have been already suffered by the plaintiff. 2 It is not sufficient that damage is probable. Thus it is necessary for the two constitu- ents of a tort, the injuria and the damnum, to precede the action ; the injuria must be of the specific kind, deceit, and the damnum must be its consequence, and not by a too indirect or remote chain of circumstances. 3 The question next arises, What is the specific kind of injury which is known to the law as deceit ? The word is not merely technical. Its popular use aids the general comprehension of its legal meaning. But its legal meaning is somewhat restricted, as will appear as this explanation proceeds. 4 To begin at the begin- 1 Medbury v. Watson, 6 Met. 246. See § 48. 2 See § 54 and cases cited. 3 See § 55 and cases cited. * See below in this chapter, Outline I. 32 THE LAW OF DECEIT. ning, which is the injuria, the word " deceit," in both popular and legal use, implies that at least two per- sons are concerned in the conduct which the word expresses, — one the deceiver, and the other the de- ceived. And in respect to the process of deceiving on the one hand, and of being deceived on the other, the deceiver is the active party, and the deceived is the passive party. The action of the deceiver is therefore the first thing to understand in deceit. Logically and chronologically, the deceit does not be- gin until he begins to deceive, although chronologi- cally, in fact, the person who is finally deceived may have been active in putting himself into relations with the deceiver. It makes no difference as respects the law of deceit which party actually seeks the other. But such a fact is useful sometimes in throw- ing light upon the intention of the person charged with deceit, and upon the conduct of the person mak- ing such complaint. The conduct of the deceiver in its true relation to the conduct of the deceived is what constitutes the facts of the injuria, or deceit. What is done and said by each, and what can be seen and heard at the time, and such other physical circumstances as go to make or to explain the transaction under examination, con- stitute the external part of the matter ; which in its turn requires and suggests also the intention and understanding of each party, which make the internal part of the matter, and which is essential to the sig- nificance of the whole transaction. In brief, what is done, and what is intended and understood by each party, is what is to be found out. 1 When such facts 1 See §§ 21, 22 and cases cited. EXPLANATION, ETC. 33 are discovered, the test by which it is to be determined whether they fall under the description of deceit or not, is what this book is intended to aid in illustrat- ing. The origin of such a legal test of conduct, as affecting mutual rights, is not to be discussed here. 1 The question undertaken to be answered is, — What is the adjudicated test of deceit ; how may it be ap- plied ; and what are its chief incidents in practice ? Since the present book aims rather at a practical division of the actual details of the law as they ap- pear in the Massachusetts cases, it is sufficient to say here that the time, the place, the customs of the com- munity, the occupation of the parties concerned, and their relative knowledge, means of knowledge, and respective intelligence are all circumstances that affect the interpretation which the courts put upon their conduct when considered with reference to the particular elements of deceit which are now to be explained in detail. Taking a plaintiff who claims to have been deceived to his hurt by a defendant, we have to ask, in repeat- ing our present inquiry, What must he prove in any and every case to maintain an action for that specific kind of injuria known as deceit ? Assume that the defendant charged with deceit is a sane person, com- petent to attend to the ordinary business of life, and able to act and to refrain from acting, and so to con- 1 It is important to consider the historical and philosophical analy- sis of acts and motives with which the learned and ahle author of "The Common Law" presents his view of the "external standard of what would be fraudulent in the average prudent member of the community." See Holmes's Common Law (1881), p. 137 et passim. See also the opinion of Holmes, J., in Burns v. Lane, 138 Mass. 350, 356. 3 34 THE LAW OF DECEIT. duct himself according to his own intention ; and assume also for the moment that the plaintiff who complains of having been deceived by him is either his equal in such capacity for affairs, or of an ability sufficient to make it necessary for bim to show in legal proceedings that he himself has acted with the good faith and prudence required by the law of " the average prudent member of the community." 1 The plaintiff must prove that the defendant intended to deceive him. This is the meaning of what is known as the scienter? The scienter is the gist of actions for deceit. 3 It is not necessary to prove that the defend- ant intended to benefit himself. 4 " The gravamen of the charge is that the plaintiff has been deceived to his hurt ; not that the defendant has gained an ad- vantage." 5 Although there was no collusion between the defendant and a third party who received the benefit of the defendant's deceit, the deceiver is nevertheless liable for the fraud he has done. 6 The fraud of the defendant is the essence of his liability ; and he is liable for the fraud even when his deceit has induced the plaintiff to make a good investment. 7 His intention to deceive, like any intention in civil cases, may be proved by express statements of such 1 See § 51 and cases cited. 2 See below in this chapter, Outline I. ; and §§ 37, 71, and cases cited. 8 Emerson v. Brigham, 10 Mass. 197. * Fisher v. Mellen, 103 Mass. 503. See § 22 and case cited. 5 See the opinion of the late lamented Mr. Justice Wells in Fisher v. Mellen, 103 Mass. 503, 505. 6 See the opinion of Hubbard, J., in Medbury v. Watson, 6 Met. 246, 259, and Pasley v. Freeman, 3 T. R. 51. 7 See § 198 and cases cited. EXPLANATION, ETC. 85 purpose, or by circumstances implying it according to the preponderance of the evidence. 1 The mode of accomplishing the deceit, as distin- guished now from the particular forms of deceit which will be described below, may be by any conduct capable of deceiving. Usually the deceit which ap- pears in the reported cases has been by spoken words. Sometimes it is by written words. Sometimes the deceit is accomplished partly by words which are spoken or written, and partly by the omission of any qualification of them. Sometimes a silent act may constitute deceit, as when, for instance, without any warning; one sells for food some eatable which has been damaged so as to be probably poisonous. 2 The point is to prove that by one way or another the de- fendant intended to commit, and actually committed, the act of deceiving the plaintiff. But it is necessary at this point to consider what are the particular forms of deceit in law. 3 Although the intention to deceive exists in all such forms, one may not, in a popular sense, intend to deceive another as to a fact about which he ignorantly makes a rep- resentation, and yet may intend his representation to be believed. But if it be false, then from the legal point of view he intended to deceive at least to the extent of intending that the other person should believe the representation. 4 Thus it appears that deceit may be committed not only with the careful intention of one who knows that what he asserts to 1 See § 95 and eases cited. 2 See § 35 and cases cited 3 See below in this chapter, Outline I. 4 See § 32 and cases cited. 36 THE LAW OF DECEIT. be true is false, but also with the reckless intention of one who does not know whether what he repre- sents be true or false, but who, for one reason or another, is willing that his reckless representation should be believed. And here again the cases require another distinc- tion to be taken concerning those who make false representations without knowing their falsity. The distinction is between one who makes a representa- tion of a fact as if he knew it to be true, or, as the legal phrase is, " as of his own knowledge;" and one who makes a like representation of a fact which is reasonably supposed to be peculiarly, although not necessarily exclusively, within his knowledge or his ordinary means of knowledge from his circumstances. 1 It will be at once observed that all of these several forms of representation may be simultaneous, and that even when that is not the case, these forms may overlap each other in some respects. But the three great divisions of the particular forms of deceit are false representations of specific facts affecting the value or quality or condition of property, — first, when the deceiver knows that he is affirming what is false ; second, when, without knowing his affirma- tion to be false, he makes it as if he knew it to be true, the truth being susceptible of knowledge ; third, when, whether knowing or not knowing his affirma- tion to be false, he makes it under circumstances which reasonably imply that he has peculiar, although not necessarily exclusive, knowledge or means of knowledge of its truth or falsity. It is unnecessary to give many instances in this place. An instance 1 See § 31 and cases cited. EXPLANATION, ETC. 37 of the first form of deceit, or known falsehood, is when one states to another who is considering a purchase of property that a third party paid -$4,000 for it, when the speaker knows that only $3,000 was so paid. 1 An instance of the second form of deceit, or ignorant representation, " as of one's own knowl- edge," is when in selling a horse the seller, believing him to be sound, represents that he is so, when in fact the horse is not sound. 2 An instance of the third form of deceit, with a supposed peculiar knowledge or means of knowledge, is, when in the sale of horses, wagons, and a stable business the owner selling repre- sents that they are better than they are; 3 another instance is, when in the sale of a patent-right the seller makes false representations which the buyer could discover to be false by consulting public rec- ords. 4 Proof of either of these three forms of deceit is proof of the scie?iter, or the intention to deceive. 5 But the mere intention to deceive, and the bare fact of deceiving, are not enough to make up the injuria. The deceiver must also be proved to have intended to induce, and actually to have induced, the person deceived to do or to refrain from doing some- thing. 6 The conduct of the deceiver must have in- tentionally influenced the belief, and induced the corresponding conduct, of the deceived. In brief, the 1 Medbury v. Watson, 6 Met. 246. Also Brown v. Castles, 11 Cush. 348 ; Belcher v. Costello, 122 Mass. 189. 2 Litchfield v. Hutchinson, 117 Mass. 195. 3 Nowlan v. Cain, 3 Allen, 261. * David v. Park, 103 Mass. 501. 5 Savage v. Stevens, 126 Mass. 207 ; Milliken v. Thorndike, 103 Mass. 382. 6 See § 48 and cases cited. 38 THE LAW OF DECEIT. defendant must have induced the plaintiff's reliance, and the plaintiff must have relied upon the defendant's inducement. Reliance is used in the cases and. in the present book to signify both the belief and the conduct of the deceived party which, without negligence on his part, are induced by a false representation. 1 But it is not necessary that the defendant's deceit should have been the sole inducement, or even the chief inducement, to the plaintiff's reliance. 2 The injured person may have been deceived in the same way by several injuring persons, and his belief may have been influenced and his conduct directed less by the particular one of them whom he singles out to sue in an action for deceit, than by any of the others. Yet if the one thus selected as a defendant has in fact so conducted himself in relation to the plaintiff as to bring his conduct under the description of de- ceit, the general features of which, are now being pointed out in succession, then he has committed the injuria essential to the action ; and the fact that others also have done it to a greater extent is merely incidental, and does not affect his liability for his own wrong. The test of liability is not the proportion of influence exerted by the defendant, but it is whether his deceit was about a fact which, as he represented it to exist or not to exist, was material to the plain- tiff's reliance. To be material to the belief and con- duct which make reliance, is to be an essentially determining factor in such belief and conduct. A material fact, as represented and believed, is an 1 See § 51 and cases cited, and below in this chapter, Outline I., 8, 4, and cases cited. 2 See § 48 and cases cited. EXPLANATION, ETC. 39 essential constituent of the belief and conduct which the representation of it induces. To speak more sim- ply, a material fact is something without which the facts to which it is material would not exist. 1 For instance, the fact that a horse is sound or unsound is an essentially determining factor in the inducement of the person who, having been deceived by a false representation that an unsound horse is sound, pays the price in purchase of it. He thus buys the horse in reliance upon a representation untrue in affirming or concealing a fact material to that reliance. 2 The relation between the conduct of the deceiver and the conduct of the deceived thus depends upon whether what the deceiver represents is material to what the deceived does in consequence of that representation. The fraud of the one induces the reliance of the other when the subject-matter of the communication determines as an essential constituent the resulting conduct. What the court instructs the jury to regard as an essential constituent of such resulting conduct is what a reasonably prudent person at the time and place and under the circumstances of each particular case, in view of the whole environment, would, in the opinion of the jury, ordinarily think himself safe in believing, and would ordinarily believe and rely upon. 3 For instance, if it is ordinarily safe to believe that a horse offered for sale as sound, and appearing to be sound, is so, then that fact is not only material to the purchase in the popular understanding of the word, 1 See Holmes's Common Law (1881), p. 326. 2 Litchfield v. Hutchinson, 117 Mass. 195. 3 See §§ 173, 175. 40 THE LAW OF DECEIT. but it is also material to the purchaser's reliance upon the seller's inducement in the legal sense of those terms. 1 But here again distinctions are to be made which illustrate the necessity of regarding all the terms used in this discussion as relative in their meanings. The terms being used to express certain reciprocal deal- ings between at least two persons, their meaning is to be determined with reference to both parties not merely in each particular case, but with reference to both parties under the general head of an action for deceit between any two parties. One of these distinctions is between a fact affect- ing the value or quality or condition of property, and a mere opinion or belief or estimate about the prop- erty or its value. Although from the point of view of a purchaser (whom the law would regard as un- reasonable if he complained as a plaintiff) the opinion of another person may be material to the purchaser's reliance, nevertheless if the purchaser suffers damage from relying upon what he knows, or should know, is a mere opinion or belief or estimate of another person, the damage has not been caused by an injuria. It is not an injuria to express one's own honest opinion or belief, or to state one's own honest estimate of facts, although one may be mistaken, and although one may so actually and intentionally lead another to rely upon such error and to suffer damage. Such mislead- ing is not the inducement of deceit. 2 Nor is reliance upon such expressions the reliance of the reasonably prudent person whom the law regards as entitled to 1 Litchfield v. Hutchinson, 117 Mass. 195. 2 See below in this chapter, Outline II. EXPLANATION", ETC. 41 the remedy of an action for deceit. Hence a repre- sentation which is honest, and is expressly a mere opinion or belief or estimate, is not actionable. And a representation which, if not expressly an opinion or belief or estimate, is obviously such because of its subject-matter is not actionable, because it is to be expected to be regarded in its true light by a reason- ably prudent person, even when it is positively stated ; as, for instance, when a sheriff selling land under a levy states that it is free from incumbrances. 1 Another distinction is, that an honest but false representation, even of a fact, is not actionable when the person who makes it directly informs the person to whom he makes it of the author or source of the supposed information. 2 This, however, is modified by the provision that if such author or source is one for whose representation the honest deceiver is re- sponsible, for instance, his partner 3 or agent, then it is actionable if the other necessary elements of the injuria — deceit — ■ are present. For instance, reading a letter, 4 of another, to the person who is deceived thereby may come under either branch of this distinction. But the most peculiar and technical side of the law of deceit is the immunity from liability which sellers have in lying about their opinion, belief, and estimate of the value of their property, and about the price which they have paid for it and sums which have been offered to them for it, in order to cheat buyers. This is simply privileged fraud. 1 See § 39 and case cited. 2 Cooper v. Lovering, 106 Mass. 77. 8 Cook v. Castner, 9 Cush. 266. * Cooper v. Lovering, 106 Mass. 77. 42 THE LAW OF DECEIT. The buyer is without a remedy when he buys in reliance upon a seller's false and fraudulent general statement that it is valuable, or a seller's general de- scription of it as fit for the buyer's general purpose, or specific particular purposes, or a seller's general estimate of its amount, or if the seller is selling his own services, upon his fraudulent general statement of self-commendation, provided that such general assertions are not accompanied by an affirmation of any specific fact affecting the value or quality or con- dition of the property. 1 The old maxim is, Simplex commendatio non obligat. In addition to, or in extension of, this privilege of fraudulently representing a seller's opinion or belief or estimate, there are two kinds of facts which are allowed to be fraudulently and specifically repre- sented by a seller, — the price he himself paid 2 for the property in question, and prices offered to him for it. 3 The extension of such immunity to these specific representations of essential facts is really an exception to the rule stated below in Outline I., as is attempted to be shown in the Discussion of Out- line II., 2, B, at the end of this chapter. But the common way is to put all false representations of vendors which are not actionable into a vague class, called " sellers' statements." Hence, in order to un- derstand the language ot the opinions, it is necessary to remember that the learned judges are more care- ful to decide the particular cases before them cor- 1 See below in this chapter, Outline II., and §§ 23, 25, 20, and cases cited. 2 See § 24 and case cited. 3 See the opinion of Hubbard, J., in Medbury v. Watson, 6 Met. 246, 259. EXPLANATION, ETC. 43 rectly, than to define general principles with a precision which might be more difficult to agree upon. The familiar maxim which is here applicable is, Caveat emptor. The principle is, that ordinarily in actual trading the seller usually recommends and the buyer disparages the object offered for sale, and that the seller may fraudulently express his opinion, belief, or estimate, or represent that he paid or was offered a high price, since a reasonably prudent buyer will either not believe, or if he believes will not actually rely upon, such statements made by a seller to induce a sale in his own interest. The standard is low; but the custom is common, and is indulged for the reasons stated by Holmes, J., in the case of Burns v. Lane, as follows : " The standard of good faith required in sales is somewhat low, not only out of allowance for the weakness of human nature, but because it is not desirable to interfere too much for the purpose of helping men in their voluntary transactions more than they help themselves, and because, if they deem the representation essential, they can make it so by requiring a warranty." 1 Here, however, the immunity for liars stops, and the seller must submit to the remedy to which third parties are subject if he commits deceit about any other specific fact affecting the value or quality or condition of even his own property. 2 Nevertheless, an action for deceit does not lie even for a fraudulent representation of such a fact, when the buyer was negligent in his reliance, or had knowledge, or means 1 See the opinion of Holmes, J., in Burns v. Lane, 138 Mass. 850, 356. 2 See § 28 and case cited. 44 THE LAW OF DECEIT. of knowledge, equal to that of the seller when the representation was made. 1 The next element of the tort, the damnum, has been already mentioned near the beginning of this chapter, and it need not be so specifically described as the injuria has been. It is subject to the general rules of actions of tort. The gist of the actions for deceit is not the peculiarity of the damnum, but the peculiar species of fraud by which the plaintiff has been injured — that is to say, deceived — to his hurt. The injuria determines the species to which a tort belongs. The specific damage in which such hurt consists falls rightly under the remedy of such ac- tions if it is the certain and direct, or not too indi- rect, or too remote consequence of the injuria, and has accrued before the action therefor is begun. 2 The plaintiff is not allowed to put in any evidence of damage as such until he has proved prima facie that the defendant has committed the injuria alleged in his declaration. If such injuria be not proved, evidence of damage alleged to have been suffered in consequence thereof is not admissible. 3 In actions for deceit, as in other actions of tort, damnum absque injuria is not actionable. Perhaps this description of what the deceit is which a responsible person, whether a seller or not, may commit as an injuria is a sufficient introduction to the Outlines below in this chapter, and to the account of the cases which is to follow. 1 See below in this chapter, Outline II., 2, C, Equal knowledge and negligence of plaintiff. 2 See § 54 and cases cited. 3 See § 133 and case cited. EXPLANATION, ETC. 45 Outline I. When an Action for Deceit lies. An action for deceit lies against a defendant (in- cluding sellers with the exceptions stated below in Outline II., 2, B, Cost or offer to seller') when the plaintiff's evidence proves prima facie that both parties are within the following rule. (This rule is in the form of a single sentence, but is divided by headings for convenience of reference.) Rule. — The defendant has deceived the plaintiff to his hurt, — (1. Tlie defendant's conduct.') When the defendant by his conduct, with or with- out 1 words, (A) has affirmed a pretended fact 2 as true, without qualification and not merely as an opin- ion, or a belief, or an estimate (B) or has concealed 3 an actual fact, present or past, and so has made a false representation ; (2. the defendant's knowledge or claim to, or means of knowledge, being the scienter) the defendant (A) either knowing 4 such representa- tion to be false, (B) or without knowing it to be false, — and even if believing 5 it, — making it as of his 1 See § 35 and cases cited. 2 Medbury v. Watson, 6 Met. 246 ; Brown v. Castles, 11 Cush. 348 ; Belcher v. Costello, 122 Mass. 189. 3 See § 35 and cases cited. * Medbury v. Watson, G Met. 246 ; Brown v. Castles, 11 Cush. 348; Belcher v. Costello, 122 Mass. 189. 5 Litchfield v. Hutchinson, 117 Mass. 195. 46 THE LAW OF DECEIT. own knowledge, the fact so affirmed or concealed being susceptible of knowledge, (C), or, whether knowing or not knowing it to be false, making it under circumstances implying his possession of pe- culiar 1 although not necessarily exclusive knowledge or means of knowledge of its truth or falsity ; (3. the defendant's deceit and inducement of the plaintiff, being the injuria.*) and when the defendant thereby intentionally 2 has deceived 3 the plaintiff ; and when the plaintiff be- lieving such false representation, has been induced thereby, with or without inducement by others, 4 to conform his own conduct to and so to rely upon such false representation, the fact therein pretended or con- cealed being material 5 to his conduct so induced ; (4. the plaintiff's reliance) and when the plaintiff, without negligence, 6 has actu- ally conducted himself according to such representa- tion, and so has relied upon it; (5. the plaintiffs hurt, being the damnum,) and when the plaintiff has suffered damage before 7 beginning the action for the deceit ; 1 Nowlan v. Cain, 3 Allen, 201 ; David v. Park, 103 Mass. 501. 2 Emerson v. Brigham, 10 Mass. 197 ; Page i>. Bent, 2 Met. 371. 3 Fisher v. Mellen, 103 Mass. 503. See § 198 and cases cited. 4 See § 48 and cases cited. 6 Litchfield v. Hutchinson, 117 Mass. 195. 6 See § 51 and cases cited. 7 See § 54 and cases cited. EXPLANATION, ETC 47 (6. the connection between the injuria and the damnum.') and when such damage is the direct, or not too indi- rect, or too remote consequence 1 of the defendant's representation and the plaintiff's reliance thereupon. § 2. Outline II. When an Action for Deceit does not lie. There are some common dealings to which it has been attempted to apply actions for deceit, but with- out success, because one or more of the essential ele- ments of that species of tort, as set forth above in Outline I., were not proved, or were not offered to be proved, or because of the exceptions to the rule stated in Outline I., which are given below in this Outline II., 2, B. The chief classes of such cases come under the head which is called " the defendant's conduct " in Outline I. (1) ; and they are as follows : — GOOD FAITH OF THE DEFENDANT. An action for deceit does not lie in the follow- ing instances, — the defendant's conduct having been without knowledge that he represented anything falsely and without any intention to deceive : — A. Express opinion, belief, or estimate. When the affirmation was without any claim that the defendant knew what he did not know, and was 1 See § 55 and cases cited. 48 THE LAW OF DECEIT. merety and expressly a statement of Lis opinion, or belief, or estimate. 1 B. Implied opinion, belief, or estimate. "When the representation was in its form an un- qualified affirmation, as of the defendant's own knowledge, that a fact believed by him, was true, but the fact so affirmed and the circumstances of such affirmation implied 2 that it was in substance merely a positive expression of the defendant's opin- ion, or belief, or estimate. C. Disclosure of source of representation. When the affirmation was without any claim that the defendant knew what he did not know, and was a recital of a fact as believed by him, but was accom- panied by a disclosure of the author 3 or source of the affirmation (provided that such author was not one for whose representation the defendant was re- sponsible ; for instance, his partner 4 or agent). 2. BAD FAITH OF THE DEFENDANT. An action for deceit will not lie even when the defendant's conduct was fraudulent, if he was the seller and the plaintiff was the buyer of property to induce the sale of which a false representation was 1 Stone v. Denny, 4 Met. 151. 2 Tucker v. White, 125 Mass. 344. See § 30 and case cited ; and Page v. Bent, 2 Met. 371. 3 Cooper v. Lovering, 10G Mass. 77. * Cook v. Castner, 9 Cush. 266. EXPLANATION, ETC. 49 made, and such representation was of one of the following kinds : — A. General description. An unqualified but merely general commendation or description 1 of the property, — as distinguished from a specific affirmation of a particular fact as actually existent independently of the seller's biassed inclination to have it believed, — and evidently im- plying to a reasonably prudent person that it was either an interested opinion, or belief, or estimate, 2 or a wilfully false valuation. 3 B. Cost or offer to seller, A mere affirmation, concerning real estate at least, that the defendant, the seller, had himself paid, 4 or had been offered 5 a certain price for the property. C. Equal knowledge and negligence of plaintiff. Whatever the representation was, — when the plain- tiff had knowledge or means of knowledge equal to that of the seller, ordinary vigilance only being ne- cessary to ascertain the truth or falsity of the repre- 1 For instance, of a house and land as a dwelling-place, Parker v. Moulton, 114 Mass. 99, — of land as of superior soil, productiveness, and capacity for keeping stock, Gordon v. Parmelee, 2 Allen, 212. 2 Of number of acres when boundaries are known to both parties. Mooney v. Miller, 102 Mass. 217 ; Gordon v. Parmelee, 2 Allen, 212. Of the value of a mortgage securing a note. Veasey v. Doton, 3 Allen, 380. 3 For instance, of one's own services as "a first-rate salesman." Blair v. Laflin, 127 Mass. 518. 4 Hemmer v. Cooper, 8 Allen, 334. 5 See opinion of Hubbard, J., in Medbury v. Watson, 6 Met. 246, 259. 4 50 THE LAW OF DECEIT. sentation, and the plaintiff either did not rely 1 upon the defendant's representation rather than upon his own knowledge, or negligently relied upon the de- fendant's representation. 2 Discussion of Outline II, 2, B, Cost or offer to seller. A clear view of this privilege of the seller — to deceive the buyer to his hurt by a false representation of the price paid by the seller, or of offers made to him — is to regard it as an arbitrary exception to the rule stated in Outline I. Since the language of the opin- ions relegates it to the vague confines of the maxim, Caveat emptor, that indication has been observed be- low in this book in sections 21 and 24. But, never- theless, it seems to be an exception to the general rule concerning the affirmation of particular facts which is stated above in Outline I, and which is referred to in section 28. The exception may be reasonable and expedient, but it is confusing to try to make it appear logical. For instance, in the lead- ing case of Medbury v. Watson, 3 the learned judge who gave the opinion attempted, arguendo, to couple such false affirmations with " naked assertions " (p. 259) ; but he then immediately proceeded to treat them as belonging to a principle of privileged valua- tion which he said was " qualified " (p. 260) by cases 1 Poland v. Brownell, 131 Mass. 138. 2 Savage v. Stevens, 126 Mass. 207 ; Salem I. R. Co. v. Adams, 23 Pick. 256 ; Poland v. Brownell, 131 Mass. 138 ; Brown v. Leach, 107 Mass. 364. As to reliance on representation of a market price without negli- gence, see Manning v. Alhee, 11 Allen, 520. 3 Medbury v. Watson, 6 Met. 246. EXPLANATION, ETC. 51 which he cited. Afterwards the learned counsel whose brief for the defendant in Medbury v. Watson (p. 254) had ingeniously referred to such false affir- mations, even when made by a third party, as "swollen statements of value," became one of the justices of the Supreme Judicial Court, and gave the opinion in the case of Hemmer v. Cooper. 1 The opinion is very brief, but it seems to show that Lethe did not run " between the bench and the bar " upon the point at issue ; for it says, with no diminished ingenuity, that such representations " are to be regarded in the same light as representations respecting its value." Then the opinion takes the arbitrary ground, — which is clear, — as follows : " A purchaser ought not to rely upon them ; for it is settled that, even when they are false and uttered with a view to deceive, they furnish no ground of action." Then Medbury v. Watson is cited evidently for its dictum. Such representations are in point of fact certainly specific, affirmations of particular facts affecting the value of the property, and are not mere extensions of estimates, or obviously "swollen statements of value." The legal reason why they are not actionable is that " it is settled," as the opinion just quoted from Hem- mer v. Cooper states. Practical reasons why such a standard is settled may be found and understood, and have already been quoted above in section 1, in the words of the learned opinion in Burns v. Lane 2 (p. 356). In brief, the exception is an expedient indulgence to the typi- cal trader who is treated in law, as in literature, as 1 Hemmer v. Cooper, 8 Allen, 334. 2 Burns v. Lane, 138 Mass. 350, 356. 52 THE LAW OF DECEIT. necessarily " meek, and much a liar." If it must be classified, then it may be said to belong to the in- stances to which the vague warning of Caveat emptor is applicable. And there is where it is expressly left by the dictum in Medbury v. Watson p. (259), which, with " cases there cited," is the ground of the deci- sion in Hemmer v. Cooper. (See §§ 2-i, 28.) Note. — As to a false representation of law, see § 199 and the case cited. MODERN CHANGES IN REMEDIES, ETC. 53 CHAPTER II. MODERN CHANGES IN REMEDIES AND THEIR RELA- TION TO THE STATUTE OF FRAUDS. § 3. Action of deceit and actions for deceit. § 4. Tort in Massachusetts statute. § 5. English Statute of Frauds ; Pasley v. Freeman. § 6. Lord Tenterden's Act; Mas- sachusetts statutes. § 7. Writing not necessary. § 8. Writing necessary. § 3. In England there was an old action of deceit, distinct from other forms of action which have been subsequently used as remedies for deceit, and not in- cluded under the very general head of Trespass upon the Case. In practice, however, that old action fell into disuse with the decay of unnecessary technical- ity, and the greater convenience of suing for deceit in trespass upon the case prevailed. 1 § 4. In Massachusetts, trespass upon the case, which was formerly used here as a remedy for deceit, is now included by statute under the general head of " Actions of Tort," in Pub. St. c. 167, § 1. Statutes of England and Massachusetts. § 5. The English statute, 29 Car. II. c. 3, entitled " An Act for prevention of frauds and perjuries," and known as the Statute of Frauds, recited its purpose in its preamble as follows : " For prevention of many 1 See the learned note of Mr. Bigelow upon the history of deceit in his Leading Cases on the Law of Torts (1875), pp. 16-20. 54 THE LAW OF DECEIT. fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury ; " and in section 4 it was enacted that " no action shall be brought whereby ... to charge the defendant upon any special promise, to answer for the debt, default, or miscarriages of another person, . . . unless the agree- ment upon which such action shall be brought, or some memorandum or note thereof, shall be in writ- ing and signed by ttie party to be charged therewith, or some other person thereunto by him lawfully authorized." This section 4 is known as the guaranty clause in the Statute of Frauds. Its prohibitory effect was modified by the leading case of Pasley v. Freeman, 1 in which the defendant was held liable for deceit, al- though there was no writing, and he was not a party to a contract which his oral false representations, con- cerning the credit of a third party, led the plaintiff to make with such third party. The effect of that case is described by Lord Eldon in another case as follows : — While discussing whether he should send to a jury a petition in equity for damages for a father's alleged false representation about his son's credit, Lord Eldon said : " The Statute of Frauds, requiring a written engagement for the debt of another, has been consid- erably cut down ever since the case of Pasley v. Free- man at law ; when this was determined, that if you throw into the declaration an allegation that the en- gagement was fraudulent, and in the form of a repre- sentation that the party is of sufficient substance to pay the debt, the recovery is not of the debt, as debt, 13T.R. 51. MODERN CHANGES IN REMEDIES, ETC. 55 upon the contract, as contract, but a recovery of damages to compensate what they call a fraud. It was long before I was reconciled to that, but with those doubts I know it has been settled as law by subsequent decisions." * § 6. Afterwards a limit was put upon actions for deceit by the statute 9 Geo. IV. c. 14, known as Lord Tenterden's Act. This contains, among other things, the following provision : " VI. And be it further enacted, that no action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given con- cerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain credit, money, or goods upon, 2 unless such represen- tation or assurance be made in writing, signed by the part}' to be charged therewith." This section was copied and enacted in Massachu- setts in St. 1834, c. 182, § 5, with the exception of the word "thereupon" for "upon," as is stated just above in the note to Lord Tenterden's Act. After- wards, in the Revised Statutes of Massachusetts, c. 74, § 3, was enacted, and read as follows : — "No action shall be brought to charge any 3 person, upon or by reason of any 3 representation or assur- 1 Carr, Ex parte, 3 Ves. & B. 108, 110 (petition in chancery). 2 In Massachusetts, St. 1834, c. 182, § 5, " thereupon " is sub- stituted for "upon" here. Upon Lord Tenterden's Act, see Reed's Statute of Frauds, vol. iii. §§ 1113, 1114. 3 In the Public Statutes of Massachusetts, c. 78, § 4, has " a " in- stead of "any," and " is " instead of " be," but otherwise is the same. In the General Statutes of Massachusetts, c. 105, § 4, has the first " a," and " is " instead of " be," but otherwise is the same. 56 THE LAW OF DECEIT. ance, made concerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be * made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized." The following clause, which, occurs in both Lord Tenterden's Act (with "upon" as is above stated) and Mass. St. 1834, c. 182, § 5, namely, "to the intent or purpose that such person may obtain credit, money, or goods thereupon," was omitted from Rev. Sts. c. 74, § 3 ; and the Supreme Judicial Court of Massachusetts suggested, in the case of Medbury v. Watson, cited below, that it was superfluous. Writing Unnecessary. § 7. Both the old and the new sections, accord- ingly, are to receive the same construction. 2 Con- sequently, such omission does not add to the limit already put upon actions for deceit by the old sec- tion, and a fraudulent representation, not affectino- the title of a third person to credit, is not within the statute, and need not, therefore, be in writing. 2 A defendant gave to the plaintiff as collateral security certain notes of third persons, and orally represented that the notes and the parties who made them were good. It was held that the Statute of Frauds, Gen. Sts. c. 105, § 4, above mentioned, did not apply, for the purpose was not to enable a third 1 See note 3 upon the preceding page for slight differences in the wording of the several sections cited from the Revised Statutes, the General Statutes, and the Puhlic Statutes of Massachusetts. 2 Medbury v. Watson, 6 Met. 246 (case for fraudulent affirma- tion). See Pub. Sts. c. 78, § 4 ; Norton v. Huxley, 13 Gray, 285 (tort for fraudulent representation). MODERN CHANGES IN REMEDIES, ETC. 57 person to obtain credit. 1 To maintain an action for falsely representing that a promissory note of a third party, delivered by the defendant to the plaintiff in part payment, is a good due and unpaid note, it is not necessary that the representations should have been written. The court (Hoar, J.) suggested that the representations were "in effect" merely repre- sentations as to the defendant's ownership of the note. 2 Writing Necessary. § 8. But although one who makes false represen- tations concerning the credit of a third party does it to benefit himself, by enabling the third party to get goods and thereby pay a debt to himself, the Rev. Sts. c. 74, § 3, above mentioned, is applicable, and the plaintiff cannot recover upon proving merely oral rep- resentations. 3 It is so when an agent of an insurance company makes representations about the credit of his company, in order to get a commission. 4 It is so when the defendant has induced the plaintiff to in- dorse a note for a third party. 5 It is so when the de- fendant induced the plaintiff to receive a note of a corporation signed by the defendant as treasurer. 6 1 Belcher v. Costello, 122 Mass. 189 (tort for deceit). See Pub. Sts. c. 78, § 4. 2 Sibley v. Hulbert, 15 Gray, 509 (tort for false representation). 3 Kimball v. Comstock, 14 Gray, 508 (tort for fraudulent rep- resentation). See Pub. Sts. c. 78, § 4. 4 Wells v. Prince, 15 Gray, 562 (contract, and tort for false rep- resentation). 5 Mann w. Blanchard, 2 Allen, 886 (tort for false representation). 6 McKinney v. Whiting, 8 Allen, 207 (tort for false representation). 58 THE LAW OF DECEIT. CHAPTER III. DECEIT IN CONTRACT. — RESCISSION AND RECOUPMENT. § 9. Tort to be proved. § 10. Assumpsit ; ex azquo et bono ; materiality. § 11. Partial failure of consider- ation ; rescission notwith- standing guaranty. § 12. Reasonable time for rescis- sion. § 13. Seller's statements ; recoup- ment ; opinion ; knowl- edge ; value ; belief. § 14. Giving source of informa- tion. § 15. Defence of surety. § 16. Time of representation. § 17. Buyer's negligence. § 18. Judgment by deceit. § 19. Distinction between war- ranty and representa- tion ; condition and im- plied warranty ; deceit in equity. § 9. The effect of the commission of the tort — de- ceit — by one party to a contract, in enabling the other party to rescind the contract, is a necessary branch of the subject in hand. It involves not only the nature of contracts, but also questions of pleading, evidence, and practice, which appear under other titles in this book; and difficult questions occur when actions in both tort and contract are brought concerning related matters. To maintain a defence to an action of contract on the ground of deceit, the same facts must be proved which would be necessary to maintain an action for deceit. 1 (§§ 96, 132, 194.) 1 King v. Eagle Mills, 10 Allen, 548 ; Bierce v. Stocking, 11 Gray, 174 (contract). See Benjamin's Sales, § 454 et seq. Compare Pollock's Contract, Wald's 1st Am. ed. p. 483, with 2d Am. ed. ch. 9, or 4th Eng. ed. ch. 9, and "Misrepresentations," by Clement Hugh Hill, DECEIT IN CONTRACT — RESCISSION, ETC. 59 § 10. Deceit is a kind of fraud, and it is not onlv in defence that it becomes material in actions of con- tract. In assumpsit the plaintiff relied mainly on the ground of the fraud and misrepresentation of the de- fendant in making the contract proved, which was to pay the defendants " half the houses " for playing at the plaintiff's theatre. The defendant represented that he had that at other theatres. Although the verdict for the plaintiff was set aside as against the law and the evidence, the court held, upon a point reserved, that this form of action was one in which the plaintiff could recover, upon the ground of fraud and misrepresentation, any excess paid to the de- fendant above what he was justly entitled to. "The action for money had and received is founded on principles of equity." 1 Ex cequo et bono is the com- mon phrase. (See § 99. But compare § 202.) § 11. Fraudulent representations were made by the defendant as to the value of a note given as part of payment for goods sold by the plaintiff to the de- fendant. It was held that the plaintiff could recover in assumpsit for that part of the consideration with- out regard to questions of rescission and without returning the other things given in payment. The plaintiff had returned the note on discovering the fraud. 2 A defendant may rescind a contract for fraud 3 Am. Law Rev. p. 442, as to the effect of iunocent misrepresenta- tions in contract. For a distinction as to insurance policies, see the same article, 3 Am. Law Rev. 441, and Davenport v. New England M. F. I. Co., 6 Cush. 340 (assumpsit). 1 Dana v. Kemble, 17 Pick. 545 (assumpsit). 2 Martin v. Roberts, 5 Cush. 126 (assumpsit). As to the time and mode of returning property in such cases, see Bridge v. Batchelder, 9 Allen, 394 (contract). § 79. 60 THE LAW OF DECEIT. notwithstanding the existence of a guaranty by one other than the plaintiff. 1 § 12. No material fact being in dispute upon the question whether a contract was rescinded within a reasonable time after notice of fraud, it is a question of law what was a reasonable time under the circum- stances. 2 The owner of personpd property sold it in consequence of actionable false representations. Af- terwards the owner took possession of the property. Held, that he had rightfully rescinded the contract of sale. The plaintiff had no title. Hence there was no conversion. 3 § 13. The principle that the buyer relies at his own risk on a seller's statements prevents recoupment in defence in an action of contract when the facts would not support an action for deceit. 4 In an action of contract the plea was payment by a note, and the replication that the note was not in payment, but as collateral security, and if in payment the plaintiff was induced to take it by defendant's false represen- tations as to the maker's solvency. The defendant requested an instruction to the jury that if the de- fendant had given his opinion only, it would not be such a false representation as would avoid the con- tract, " even if the opinion given were erroneous." The judge gave the instruction, but added : " If the opinion were not honestly given, but was falsely and fraudulently given, in order to mislead the plaintiffs, they might avoid the contract." It was held that 1 Holbrook v. Burt, 22 Pick. 546 (debt on bond). 2 Holbrook v. Burt, 22 Pick. 546 (debt on bond). 3 Perkins v. Bailey, 99 Mass. 61 (tort for conversion). 4 Gordon v. Parmelee, 2 Allen, 212 (contract); s. c. 15 Gray, 413. § 2, Outline II., 2, A. DECEIT IN CONTRACT — RESCISSION, ETC. Gl " if the statement was an expression of opinion merely, although false and intended to deceive, the plaintiff had no right to rely upon it, and is not enti- tled to maintain this action on that ground. The . . . judge should therefore have given the . . . instruc- tion requested by the defendant without qualifica- tion." 1 A vendor's erroneous or false representations about the productiveness of land, and the number of acres of a particular piece the boundaries of which are known to the vendee, were held not t® constitute a defence to an action on notes for the price, for they were the expression of a vendor's opinion or estimate. Hence the defendant could not recoup. 2 A seller may rescind a contract who, not having equal means of knowledge, is deceived by the defendant and by the buyer, a third party, as to the selling market price at pretended sales of certain securities (not as to their mere value), which securities the buyer gave to the plaintiff for goods ; and the seller may main- tain replevin against the defendant who takes the goods. 3 A lessor falsely represented to lessees, either with intentional fraud or ignorantly, as of his own knowledge, that a store and its drains were built according to certain plans. It was held that this was a good defence to an action for the rent, the lessees having surrendered possession as soon as they discov- ered the fraud. 4 Mistaken representations about the value of one's stock in trade and one's preferred debts, if honestly made as of one's own knowledge, 1 Homer v. Perkins, 124 Mass. 431 (contract). § 2, Outline II., 2, A. 2 Gordon t>. Parmelee, 2 Allen, 212 (contract). § 2, Outline II., 2, A. 3 Manning v. Albee, 11 Allen, 520 (replevin) ; s. c. 14 Allen, 7. * Milliken v. Thorndike, 103 Mass. 382 (contract). § 1, Outline I., 2. 62 THE LAW OF DECEIT. but being an estimate or opinion, as is apparent from the subject-matter, do not render a lease voidable. 1 § 14. If the vendor is ignorant of the property, but believes the statements of others about it, and hon- estly repeats them to the vendee, explaining the source of his information, — for instance, another's letter, — he would not be liable for deceit if the state- ments are untrue. Nor can the vendee rescind a con- tract for the price on that ground. 2 § 15. If the obligee in a contract of suretyship rep- resents that he knows facts which ne does not know, and which are untrue and material, — for instance, the age and order of a machine, — and thereby de- ceives the surety, this will be a good defence to an action on the contract, although under seal. 3 § 16. A defendant in an action of contract on a note introduced evidence of fraudulent representa- tions at some previous time by the officers of the in- surance company to which it was given. It was held that it was error to instruct the jury that this would avoid the contract, without making it also clear that the representation must have existed or continued at the time of giving the note, in order to induce the plaintiff to give the note. 4 § 17. Without having used reasonable diligence in ascertaining the quality or value of goods open to his observation, the quality or value of which could be so ascertained, a purchaser cannot defend in an action i Page v. Bent, 2 Met. 371 (contract). § 2, Outline PL, 1, B. 2 Cooper v. Lovering, 106 Mass. 77 (contract). § 2, Outline II., 1, C. 3 Hazard v. Irwin, 18 Pick. 95 (covenant). § 1, Outline I., §§ 75, 70. 4 Fogg v. Pew, 10 Gray, 409 (contract). See § 43. DECEIT IN CONTRACT — RESCISSION, ETC. 63 of contract by setting up the plaintiff's false represen- tations of quality and value as seller. 1 § 18. In an action of debt on a judgment, the plea being nil debet, it was held that the defendant under this issue could not prove that the judgment was ob- tained by fraud and misrepresentation, for " while the judgment remains apparently in full force, that defence cannot be made against it." Hence it was unnecessary to consider the admissibility of evidence offered. 2 § 19. Note. — See as follows: Distinction between warranty and representation in insurance policies. 3 Condition and implied warranty, Benjamin's Sales, § 600. The right of rescission, 4 Pol- lock's Contract, Wald's 2d Am. ed. ch. 10; and deceit in equity, 5 Ibid. pp. 692-700. Voidable contracts, Holmes's Common Law (1881), Lect. ix. See also, in the present book, chapters xvii., xviii., xix., and Contract,m Index. 1 Brown v. Leach, 107 Mass. 364 (contract). § 2, Outline II., 2, C. 2 M'Rae v. Mattoon, 13 Pick. 53 (debt on judgment). 3 Daniels v. Hudson River F. I. Co., 12 Cush. 416. 4 Seavey v. Potter, 121 Mass. 297. 5 Spurr v. Benedict, 99 Mass. 463. 64 THE LAW OF DECEIT. CHAPTER IV. SELLERS' statements and peivileged fraud. § 20. Sellers' statements. §§ 21-22. Distinction between sellers and third parties in their relations to buyers. § 23. Representations of value. § 24. Of the cost to the seller. § 25. Barter. §§ 26, 27. Equal opportunities. § 28. Sellers' liability for false representation of fact. § 29. Note. § 20. The practical, and upon the whole reason- able, although imperfect, method of the law and its origin, in a sober facing of the facts of life as distin- guished from more theoretical standards for morality, appear in a most pronounced manner in the indul- gence allowed to vendors to praise the property which they are selling even beyond the limits of truth and good faith. Vendees who wish to protect themselves may do so by taking a warranty. 1 § 21. A third party who makes false affirmations about property with the intent to defraud the vendee may be liable to him for deceit, notwithstanding the fact that the same representations with the same in- tent would not render the vendor liable if he should make them ; for instance, about the price paid by the vendor. 2 In such a case the distinction is that the buyer is aware of the seller's disposition to put a 1 Veasey v. Doton, 3 Allen, 380 (tort for deceit). § 2, Outline II., 2, A. 2 Medbury v. Watson, 6 Met. 246 (case for fraudulent affirmation. A leading case). § 1, Outline I., 1 ; and § 2, Outline II., 2, B. sellers' statements, etc. 65 high estimate on his property, but is more apt to be misled by a third party's apparent disinterestedness or friendliness. 1 (§ 2, Outline II., Discussion of 2, B.) § 22. The liability of a third party for deceit does not require that he intend to benefit himself in any way. The gist of the action is the fraud practised on the plaintiffs. 2 § 23. But a seller's general commendation or de- scription of property (§ 2, Outline II., 2, A), although known by him to be false when made, are treated in law as expressions of opinion or estimate, and will not support an action of tort for deceit, although the buyer did not see the property. In the case cited the affirmations of the seller concerned the value of a house and land, and their condition and adaptation for a dwelling-place. " The buyer is not excused from an examination," unless fraudulently induced to forbear inquiry which he would otherwise have made. If the buyer in such a case wishes to recover for a fraudulent inducement to forbear inquiry, he must specifically plead it, and prove it as " an additional cause of action." 3 A vendor falsely represented to the vendee the amount of wood on certain land, and the chance of buying an adjoining piece from a third party. It was held that these were mere expressions of opinion and not actionable. 4 § 24. " The representations of a vendor of real 1 See opinion of Hubbard, J., in Medbury v. Watson, 6 Met. 246. 2 Patten v. Gurney, 17 Mass. 182 (case for fraudulent represen- tation). 3 Parker v. Moulton, 114 Mass. 99 (tort for deceit). § 2, Outline II., 2, A. 4 Mooney v. Miller, 102 Mass. 217 (tort for deceit). § 2, Outline IX, 2, A. 5 66 THE LAW OF DECEIT. estate to the vendee as to the price which he paid for it, are to be regarded in the same light as represen- tations respecting its value. ... It is settled that even when they are false, and uttered with a view to deceive, they furnish no ground of action." 1 § 25. When property is exchanged or bartered, in- stead of being merely sold, both parties have those same privileges of using bad faith which belong to what are called sellers' statements. 2 § 26. In view of the foregoing decisions, the fol- lowing are to be expected : A vendor represented land, the boundaries of which he pointed out truly, to contain more acres than it contained, and repre- sented that it was more productive than it was. It was held that such representations, although fraudu- lent, were not actionable, for the truth might have been ascertained by ordinary vigilance. 3 § 27. In an action of tort for deceit in representa- tions of the value of goods and the amount of a busi- ness, in the sale of a half interest in such goods and business, it appeared that the goods were exposed to and fully examined by the plaintiff and a friend of his called in for the purpose, and that the plaintiff had full access to the books. It was held that a buyer who has ample opportunity and equal means of information with the seller relies at his own risk upon the seller's statements of the value of the goods and the amount of the business in question. The goods, after the sale complained of, were sold by 1 Hemmer v. Cooper, 8 Allen, 334 (tort for deceit). § 2, Outline II., 2, B. ' 2 Homer v. Perkins, 124 Mass. 431 (contract). § 2, Outline II., 2. 3 Mooney v. Miller, 102 Mass. 217 (tort for deceit). § 2, Outline II., 2, C. sellers' statements, etc. 67 consent of parties. But there was no evidence that before such sale the plaintiff offered to rescind, or to return the goods, or made a demand for repayment. 1 Sellers' Liability. § 28. But a vendor who falsely represents to the vendee that a high price had been paid by a third party for the property in question is liable in tort for deceit, for the representation of a price paid by one other than the vendor is not within the privilege of sellers' statements, but is of a particular fact in regard to the value of the property which induces the pur- chase, and upon which the vendee has a right to rely without further inquiry. 2 This test is the limit of the seller's privilege of fraud. If he falsely represents a particular fact (other than the price he paid, or an offer to him), affecting the value, quality, or condition of the prop- erty in question, he does it at his peril, and his lia- bility therefor is determined by the same rules which hold third parties liable for deceit. § 29. Note. —See chapters i., v., vi., ix., xix., and Sellers' Statements and Fraud, in Index. 1 Poland v. Brownell, 131 Mass. 138 (tort for deceit). § 2, Outline II., 2, C. 2 Belcher v. Costello, 122 Mass. 1S9 (tort for deceit). § 1, Outline 1,1. In an action for deceit for selling to the plaintiff two free Mulatto boys for slaves, it appeared in evidence that the defendant told the plaintiff at the sale that he would not sell them as slaves. Hence "the court directed the jury to find defendant costs." The Chief Justice said at the trial, " That he knew them to he free they must prove, or do not support their declaration" (p. 32). Oliver v. Sale, Quincy, 29 (deceit). § 1, Outline I., 2. 68 THE LAW OF DECEIT. CHAPTER V. REPRESENTATIONS AND MODES OF REPRESENTATION. § 30. Knowledge and means of it. § 31. Peculiar knowledge. § 32. Ordinary means of knowl- edge ; ignorant lie. § 33. Equal knowledge. § 34. Concealment. Suggestion of falsity. § 35. Silence ; direct fraud and indirect deceit. § 36. Opinion ; belief; estimate. § 37. Implied and express opin- § 38. Belief and estimate. §§ 39-41. Good and bad faith in representations which are obviously mere expres- sions of opinion. § 42. Time of representation. §§ 43, 44. Time of making. § 45. Continuing representation. § 46. Alternative. Plaintiff's op- tion of reliance upon either. § 47. Note. Knowledge and Means of Knowledge. § 30. The somewhat tentative standards by which the courts determine whether the several elements of actionable deceit were respectively present in an alleged injuria are obviously intended to be quite practical, and in that sense reasonable, rather than completely free from theoretical difficulties or ob- scurities. The courts seek to follow the actual and necessary tests of the common life and changing business of the time and place to which the law is to be applied, as well as to decide under prece- dents as nearly as is according to sound sense. A representation being essentially a communication from one party to another party, the questions, what it is and in what does it consist, depend, of course, some- what upon who the parties are, and what they are REPRESENTATIONS, ETC. 69 to be reasonably taken to mean and to understand by the word or act of commission or omission com- plained of. The relative knowledge of the plaintiff and defend- ant is sometimes one of the tests by which to deter- mine whether a representation is actionable. A plain- tiff must directly or indirectly prove the scienter (§ 1, Outline I., 2), but his own knowledge or negligence may prevent his remedy. (§ 1, Outline I., 4 ; § 2, Outline II., 2, C.) § 31. It is at his peril that a vendor, to induce a purchase, makes a false assertion concerning certain distinct facts peculiarly, although not exclusively, within his own knowledge. Hence such an asser- tion concerning the quality, character, or condition of certain property consisting of horses, wagons, and a stable business, sold under that inducement, was held to be actionable in tort for deceit. 1 Also a seller's false statement that he has the interest in the patent-right which he undertakes to sell ; or that the invention is not covered by a patent, — is in either case such a false representation of a fact as sustains an action for deceit, even if the buyer might have discovered the fraud by searching the records of the patent office. The opinion in the case cited does not state reasons ; but the principle, as appears from the other decisions cited, seems to be that the matter was peculiarly, although not exclusively, within the defendant's knowledge. 2 And in an action on the case where the defendant falsely pretended that lie had a mortgage upon certain property which had 1 Nowlan v. Cain, 3 Allen, 261 (tort for deceit). § 1, Outline I., 2. 2 David v. Park, 103 Mass. 501 (tort for deceit). § 1, Outline I., 2. 70 THE LA"W OF DECEIT. been attached, and the attachment was therefore abandoned, it was held that he was liable for de- ceit. Besides, it was also held that the fact that the plaintiff would have had a statutory remedy under Rev. Sts. c. 90, §§ 79, 80, against the defendant if the plaintiff had paid the pretended mortgage, was held not to exclude the remedy for the deceit, which was actionable at common law. The possible statutory remedy was cumulative. 1 (Pub. Sts. c. 161, §§ 75, 76.) § 82. Nor can a vendor, more than others, always talk or act falsely or carelessly with impunity even when he is ignorant. His liability extends not merely with his knowledge, but also with his means of knowledge. If he represents that a material fact susceptible of knowledge exists as of his own knowl- edge when it does not exist, and he, by reasonable inquiry, could learn the truth, he commits the in- juria, notwithstanding his ignorance that the fact does not exist. For instance, if a seller represents that a horse is sound when he does not know it to be true, and reasonable inquiry would discover un- soundness, it is not a mere matter of opinion, — it is a false claim of a fact which does not exist. Hence such a seller has been held liable in tort for deceit. 2 The fact of deceit in such a case is so completely intentional, so far as the legal relations of buyer and seller require a scienter in such actions, that in the case cited it was also held that it was not necessary 1 Brown v. Castles, 11 Cush. 348 (case for deceit). The opinion cites many cases. For representation of attachment, see also Burns t'. Lane, 138 Mass. 350 (tort for deceit). § 1, Outline I., 2. 2 Litchfield v. Hutchinson, 117 Mass. 195 (tort for deceit). § 1, Outline I., 2, 3. REPRESENTATIONS, ETC. 71 to allege, or if alleged to prove, that the defendant knew of the falsity ; because enough else was proved to imply that necessarily, and so to constitute a cause of action. 1 False representations of material facts affecting the value of a distant piece of property, — for instance, the situation of a farm, the condition and character of the buildings, — made with or without knowledge of the truth, were held to be not mere expressions of opinion, and hence were held to be actionable, unless the jury, on all the evidence, should find that the plaintiff was negligent, for in- stance, in not visiting the place. Before the delivery of the deed the defendant told the plaintiff that he had never seen the farm, and referred the plaintiff to three other persons, some of whom made substan- tially the same representations. 2 § 33. But where unusual inquiry would be neces- sary to ascertain the defect, and both parties have equal ignorance and equal means of knowledge, and neither the representation nor the reliance upon it is direct, there is sometimes no injuria. For in- stance, barrels of beef branded by a regular inspector were sold by the defendants to the plaintiffs, the defendants not knowing the beef to be bad, and giving no warranty and making no direct repre- sentations of its soundness. Both parties evidently relied on the inspector's brand. The beef was bad. It was held that case for deceit did not lie. 3 1 Litchfield v. Hutchinson, 117 Mass. 195 (tort for deceit). See § 37. 2 Savage v. Stevens, 126 Mass. 207 (tort for fraudulent represen- tation) ; s. c. 128 Mass. 254. § 1, Outline I., 2 ; § 2, Outline II., 2, C ; § 51. 3 Emerson v. Brigham, 10 Mass. 197 (case for deceit). See note to this case on implied warranty. § 2, Outline II., 1, B. 72 THE LAW OF DECEIT. Concealment. § 34. One of the difficulties in construing repre- sentations alleged to be fraudulent is the question what meaning and weight shall be imputed to the omission to state or to the concealing of facts neces- sary to the information which the plaintiff desired. The caution of the court in avoiding the danger of extending the reach of the law in this respect appears in the following case : A cashier of a bank who knew that a certain firm were doing a very uncertain busi- ness, was asked what was "their standing and re- sponsibility." He replied, " Not familiar with detail of their business ; they have paid all paper with their name upon maturity without protest promptly since my acquaintance with them from 1865 to 1880." It was held on demurrer that it would be " an un- warrantable extension of the law relating to fraud- ulent representations " to hold the defendant liable. Field, J., said : " He stated a single fact which was true. ... If it is said that the representation made suggested something that is false, it is impossible, with any reasonable definiteness, to state the facts which it suggested" (p. 283). 1 § 35. Silence, under some circumstances, is deceit. For instance, to sell an article of food known to be poisonous, or which has met with an accident which may make it dangerous to use as food, without dis- closing its condition, is actionable in tort. In the words of the court (Ames, J.), " Silence in such a case would be deceit." 2 Concealment of a material i Potts v. Chapin, 133 Mass. 276 (tort for deceit). § 1, Outline I., 1. 2 French v. Vining, 102 Mass. 132 (tort for false and negligent conduct). Compare Potts v. Chapin, 133 Mass. 276; Coddington v. REPRESENTATIONS, ETC. 73 fact, for the purpose of inducing another by a repre- sentation to part with property, is ground for an action for deceit ; for instance, a father's letter rec- ommending his son as a purchaser, but omitting to state that the son is a minor. 1 A holder of a note who procures the indorsement of a minor, and sells the note to a purchaser whom he warns of the fact, is nevertheless liable for deceit to a subsequent pur- chaser without notice. 2 One who fraudulently pro- cures a note held by him to be indorsed by a minor, and then sells the note without any fraudulent in- tent, is nevertheless liable for deceit in an action of trespass on the case. 3 (§ 1, Outline I., 1, Conduct.^) Opinion; Belief; Estimate. § 36. The cases which turn upon the question whether a representation was anything more than an expression of opinion or belief, whether in good or bad faith, show that considerable discrimination is expected by the courts to be exercised by persons who seek a judicial remedy for the results of their own imprudence or misfortune. (§ 2, Outline II., 1,2.) § 37. A seller's representations of a promissory nature of what property will be in the future, so far Goddard, 16 Gray, 436 ; Benjamin on Sales, Perkins's 1st Am. ed. § 430, note (k), and Bennett's 4th Am. ed. § 430, note (Jc) ; and for sug- gestion of difference in English cases, Pollock on Contract, Wald's 1st Am. ed. p. 483, the text of which contains passages omitted from 2d Am. ed. and from 4th Eng. ed. See § 174. 1 Kidney v. Stoddard, 7 Met. 252 (case for fraudulent represen- tation). 2 Lohdell v. Baker, 3 Met. 469 (case for deceit) ; s. c. 1 Met. 193. 3 Lobdell v. Baker, 1 Met. 193 (case for deceit) ; s. c. 3 Met. 469. 74 THE LAW OP DECEIT. as they are expressions of opinion, will not avoid a contract. In the case cited below, 1 the court (Wells, J.), added, "Unless he knew them to be untrue, or made them for the purpose or with the intent to deceive." But this rather obscure statement must probably be understood, in view of the evidence and the charge, not as asserting any liability of a seller for a false expression of opinion, but as indicating what is the settled law, that if the jury should find a representation of a material fact known to be false when made, or made as of the seller's own knowledge, and yet false whether he knew it to be false or not, then the seller would be liable in deceit, and the con- tract might be rescinded. The case was concerning a sale of plants. The representations were concerning the probability and mode of their living and growing. The defendant denied that cuttings furnished were equal to the samples recommended, and alleged false representations. The plaintiff requested the judge to charge that the defendant must prove not only the untruth of the representations, but " also that the plaintiff or his agent knew them to be false and un- true when he made them." The judge refused this, and instructed the jury that "if those representations were in fact untrue, the verdict should be for the defendant, although there was no evidence that the plaintiff or his agent knew them to be untrue when made." The opinion in finding this instruction erro- neous appears to mean that if the seller honestly showed the samples, and his representations about them and the cuttings to be furnished were expres- sions of opinion, he would not be liable in deceit; 1 Pike v. Fay, 101 Mass. 134 (contract). § 1, Outline L, 2, Scienter. REPRESENTATIONS, ETC. 75 although he would be so liable if he had knowingly and falsely, or ignorantly but as if he had knowl- edge, represented what he said as a fact. This view of the words quoted above from the opinion is sup- ported by the fact that the brief 1 of the learned counsel for the defendant contains the following point : " The prayer for instruction, and the refusal of the court, and the instruction actually given by the court to the jury, were in accordance with the principles of law enunciated in Hazard v. Irwin, 18 Pick. 109 ; Stone v. Denny, 4 Met. 156." The pages so cited contain the court's statements concerning: representations of fact by a seller as of his own knowl- edge. Also the brief l of the learned counsel for the plaintiff, in behalf of the request for the instruction that the representations must have been known to be untrue when made, cites the case of King v. Eagle Mills, 10 Allen, 518. In that case a ground of defence was false representations by the plaintiff concerning a fact, to wit, that the articles in question were of a kind and quality suitable for the defendant's business. And the court held the charge to be bad because " there was an omission to state that the sale could not be rescinded on this ground unless the jury were satisfied that the representations were not only false, but that the defendants knew them to be false at the time they were made " (p. 551). But in King v. Eagle Mills there was no distinction drawn between representations known to be false and representations made as of one's own knowledge, whether ignorantly or otherwise. The need of having the jury find the scienter appears to have been the point. And the 1 See the papers (101 Mass.) in the Social Law Library, Boston. 76 THE LAW OF DECEIT. omission of an instruction to this effect was the error in the charge in Pike v. Fay. The scienter is knowledge of the falsity which constitutes the fraud in deceit. Knowledge of the falsity must exist, whether it be of the falsity of the fact represented, or of the falsity of his own assertion of knowledge, when the injuring party does not know whether the fact represented by him is true or not. 1 Sometimes when the pleadings and evidence show a fraudulent act which necessarily and of itself im- plies knowledge of the falsity of the claim of knowl- edge which deceived the damaged party, or what is called " intent to deceive," in the words of the court in Pike v. Fay (p. 137), then it is unnecessary to allege or prove knowledge that the fact so claimed to be known was false. 2 This was the point upon which the case of Litchfield v. Hutchinson was decided. Nevertheless, the scienter, as explained above, re- mains essential to the cause of action in deceit. The learned judges at nisi prius seem to have been misled by the words of opinions into making some of their erroneous rulings about the scienter. It is not to be wondered at, for in the opinions in many cases which have been decided correctly according to the settled law of deceit the language of the learned court has been nevertheless general and practical, rather than clear and precise. The scienter thus understood, whether expressly or by implication, must be alleged, proved, and found. 3 (§ 1, Outline I., 2, Scienter.^) i Hartford L. S. I. Co. v. Matthews, 102 Mass. 221. 2 Litchfield v. Hutchinson, 117 Mass. 195 (tort for deceit). 3 Hartford L. S. I. Co. v. Matthews, 102 Mass. 221 (tort for fraud- ulent representation) ; Litchfield v. Hutchinson, 117 Mass. 195 (tort REPRESENTATIONS, ETC. 77 § 38. Qualified representations, believed by the seller, and made by him as believed, and not as of his own knowledge, although false, will not support an action for deceit ; for instance, a sale of the stock and property of a woollen factory by an incorrect schedule. 1 § 39. The following is a striking case. An officer, selling land on execution, in good faith stated it to be free of incumbrances, believing it to be so, but it was in fact incumbered. It was held that he was not liable in an action of deceit, and that the contract could not be rescinded therefor. " Although he said he knew there were no incumbrances, this was but a strong expression of his belief or conviction upon a matter which was in its nature a matter of opinion or judgment." (Morton, J.) 2 (§ 2, Outline II, 1, B.) § 40. A representation that a third party died owning a large sum in excess of his liabilities, when he in tact died insolvent, is not actionable if the de- fendant believed the representation and did not make it as of his own knowledge. 3 A selectman of a town as such met the selectmen of another town, and under a mistake as to his authority contracted with a builder to build a bridge at the expense of the two towns ; but it seems that he did not thereby render for deceit) ; King v. Eagle Mills, 10 Allen, 548 (contract) ; Stone v. Denny, 4 Met. 151 (case for deceit) ; Hazard v. Irwin, 18 Pick. 95 (covenant) ; Pike v. Fay, 101 Mass. 134 (contract) ; Tryon v. Whit- marsh, 1 Met. 1 (case for fraudulent representation). 1 Stone v. Denny, 4 Met. 151 (case for deceit). The opinion dis- cusses many cases. § 2, Outline II., 1, A. 2 Tucker v. White, 125 Mass. 344 (contract, and tort for deceit). 3 Cowley v. Dohbins, 136 Mass. 401 (tort for deceit). § 2, Outline II, 1, A. 78 THE LAW OF DECEIT. himself liable to an action of deceit by the plaintiff town, even although his own town had not author- ized and did not ratify his act. In the case cited, if a representation was made, it was to the builder, not to the plaintiff town. The plaintiff town was non- suited. 1 § 41. The freedom from liability in actions for deceit, for the expression of opinion, extends even to bad faith in statements made by sellers. (See Chapter IV.) False and fraudulent representations of future profits which the plaintiff may make from the property sold to him by the defendant are not ground for an action of deceit. 2 Time of Representation. § 42. Curious questions of fact are sometimes raised concerning the time when representations be- gan and ceased, and concerning the persons to or from whom they continued, as inducements to reliance at certain times. § 43. Instructions to the jury are erroneous which leave it open to the jury to find that actionable repre- sentations were made, without also finding that they were made at the time of the alleged injuria; for instance, actionable representations may have at some time defrauded others than the plaintiff in deceit or the defendant in contract, and yet may not have continued. 3 1 Webster v. Earned, 6 Met. 522 (case for deceit). § 2, Outline II., 1, B. 2 Pedrick v. Porter, 5 Allen, 324 (tort for deceit). § 2, Outline II., 2, A. 3 Fogg v. Pew, 10 Gray, 409 (contract). § 1, Outline I., 3, Injuria. REPRESENTATIONS, ETC. 79 § 44. False representations made by a third party after a contract, but before its performance, — for instance, by delivering goods to an insolvent, — and in time for rescission, are actionable. 1 (§§ 9, 12.) § 45. An architect represented a builder, to whom he owed money on a house then being built, to be a responsible man, who would pay the plaintiff ac- cording to agreement. The judge ruled that the representation to maintain the action must be proved to be untrue at that time, and to have been known to be untrue, and that it related to the agreement concerning a job then on hand. This was held to be correct. 2 The case is stated in § 46. Representation in an Alternative. § 46. The difference between the facts which lead to the distinction between the remedies of tort and contract is illustrated by the following case, contain- ing an offer under which the person to whom it was made had the option to choose between reliance upon what might turn out to be a false representation and acceptance of what might become a contract of guar- anty. A statement by letter in the alternative was made by a third party as follows : " He is a respon- sible man, and will pay you according to agreement, or I will accept his order for any amount not exceed- ing $500 in 30 days." The plaintiffs relied on the first clause. In an action of case for false representa- tions against the third party, it was held that the plaintiffs could rely on either clause. In answer to 1 Bowen v. Carter, 124 Mass. 426 (tort for false representation). 2 Thaxter v. Bugbee, 5 Cush. 221 (case for fraudulent represen- tation). § 70. 80 THE LAW OF DECEIT. a question by the judge, the jury said that they found the clause relied on to have been true at the time and for the job with reference to which it was made. Their verdict for the defendant was sustained against exceptions. 1 §47. Note. — See chapters i., iv., vi., vii., viii., ix., xiii., xiv., xv., xix., and Representation, Knowledge, Opinion, Time, Alternative, Sellers' Statements, Inducement, Injuria, Principal and Agent, Evidence, Charge, and Action, in Index. 1 Thaxter v. Bugbee, 5 Cush. 221 (case for fraudulent represen- tation). See § 92, for special questions to jury. INDUCEMENT AND INJURIA. 81 CHAPTER VI. INDUCEMENT AND INJUEIA. § 48. Partial inducement ; additional inducement to forbear inquiry. § 49. Note. § 48. Fine distinctions in motives are not favored by courts when drawn against plaintiffs who have suffered by false representations of defendants, even when others have been equally in fault with the de- fendant in a particular case, and the plaintiff has been equally influenced by their wrong. What the plaintiff did and suffered in consequence of what injury the defendant did whom he has chosen to sue for deceit is the question, and not the entire state of the plaintiff's mind. Thus the mere fact that the in- ducement practised by a defendant was only one or a part of other inducements upon which the plaintiff relied, does not prevent it from being actionable. If material, it need not have been sole ; 1 nor need it be " predominant." 2 As the court (Colt, J.) said in one of the cases cited, " It is not necessary that the false representations should have been the sole or even the predominant motive : it is enough if they 1 Safford v. Grout, 120 Mass. 20 (tort for false representation) Hartford L. S. 1. Co. v. Matthews, 102 Mass. 221 (tort for fraudulent representation). 2 Matthews v. Bliss, 22 Pick. 48 (case for fraudulent represen- tation). 6 82 THE LAW OF DECEIT. had material influence upon the plaintiff, although combined with other motives." * Hence defendants may be liable in tort for deceit, although the plain- tiffs were partly induced by the statements of others to pay. 2 (§ 1, Outline I., 3, Injuria.) But it might easily happen that while several per- sons are making the same false representations, some one or more may also fraudulently induce a forbear- ance of inquiry. And it is to be remembered that fraudulent inducement to forbear inquiry or exami- nation which a buyer would otherwise have made, if "relied on as an additional ground of action," must be specifically set forth in the declaration. 3 § 49. Note. — See chapters v., vii., ix., xi., xiv., xv., and Inducement and Injuria, in Index. 1 Safford v. Grout, 120 Mass. 20 (tort for false representation). 2 Hartford L. S. I. Co. v. Matthews, 102 Mass. 221 (tort for fraudu- lent representation). 3 Poland v. Browned, 131 Mass. 138 (tort for deceit) ; Parker v. Moulton, 114 Mass. 99 (tort for deceit). RELIANCE AND NEGLIGENCE. 83 CHAPTER VII. RELIANCE AND NEGLIGENCE. §§ 50, 51. Negligent reliance of vendee. § 52. Negligence of vendee as to vendor's rights. § 53. Note. § 50. Whether the plaintiff was negligent in relying upon representations, otherwise actionable, made to him by the defendant, is sometimes a material question of fact for the jury. (§ 1, Outline I., 4.) § 51. A vendee's omitting to go to a distant place — for instance, from Boston to Tamworth New Hamp- shire — to visit a farm represented by the vendor to be valuable is not negligence as a matter of law. The question of actual negligence is for the jury on all the evidence. 1 In an action of tort for deceit, the declara- tion alleged that certain false representations had been made by the defendant about a third person's credit and responsibility, and on demurrer and judgment for the defendant in the superior court the plaintiff" ap- pealed. At the argument in the court above the defendant claimed that certain representations were such as to put the plaintiff to further inquiiy. But the court refused to declare as matter of law that the plaintiff should have made further inquiry. 2 1 Savage v. Stevens, 120 Mass. 207 (tort for fraudulent represen- tation) ; s. c. 128 Mass. 254. § 2, Outline II., 2, C. 2 Bowen v. Carter, 124 Mass. 420 (tort for fraudulent represen- tation). § 1, Outline I., 4, Reliance ; § 2, Outline II., 2, C, Xeyligence. 84 THE LAW OF DECEIT. § 52. Where the plaintiff in case had neglected to conform to a usage which requires the buyer who finds that cotton is fraudulently packed to notify the seller as soon as practicable of the fault, to give him opportunity to examine the goods, and to furnish him with the planter's marks and other proofs, in order that he might protect himself, it was held that the plaintiff could not maintain his action. 1 § 53. Note. — See chapter xiv., and Reliance and Negligence, in Index. 1 Casco M. Co. v. Dixon, 3 Cush. 407 (case for false packing). LOSS AND DAMNUM. 85 CHAPTER VIII. LOSS AND DAMNUM. § 54. Necessity of past damage. § 55. Remoteness ; indefiniteness ; contingency. § 56. Note. § 54. The damnum, or damage, suffered by the plaintiff, which is one of the essentials of a tort, must actually and certainly have taken place before the action is brought. It is immaterial that the plaintiff has good reason to fear future damage, when no dam- age is already past. For instance, a plaintiff who had been fraudulently induced by the defendant to in- dorse in blank a mortgage note for two years which the defendant had negotiated contrary to the plain- tiff's remonstrance, and upon which the plaintiff had been sued, the suits being pending, but upon which the plaintiff had paid nothing, was held not to have a right even to nominal damages. 1 In another case the plaintiff brought an action of deceit against the maker of a note not negotiable, which the payee had indorsed in blank and transferred to the plaintiff, the declaration alleging that the maker and payee con- trived to deceive him, and that the payee after the transfer of the note fraudulently gave a discharge to the maker. No other proof of consideration was given 1 Freeman v. Venner, 120 Mass. 424 (tort for fraudulent represen- tation). § 1, Outline I., 5, Damnum. 86 THE LAW OF DECEIT. besides the said indorsement. Facts tending perhaps to show a criminal conspiracy were proved, but no damage to the plaintiff was shown. The plaintiff was nonsuited. 1 § 55. A fraudulent purchase or the accepting of a fraudulent conveyance of property, in order to enable the seller to avoid having his property or his body taken by a creditor, is not actionable in deceit, for it is too uncertain to constitute an injuria, and the damage, if any, is too remote, indefinite, and contin- gent. 2 Nor are false representations actionable which induce a creditor not to act upon his intention to at- tach property of his debtor, although the property is afterwards attached by another creditor. Both the intention of the plaintiff and the damage claimed are too remote. 3 (§ 1, Outline I., 6, Connection of Injuria and Damnum. See § 198.) §56. Note. — See chapter xiii., xviii., and Damnum and Damages, in Index. 1 Morgan v. Bliss, 2 Mass. Ill (case for deceit). 2 Lamb v. Stone, 11 Pick. 527 (special action on the case. "An action of new impression," p. 531). See Wellington v. Small, 3 Cush. 145 (case for damage by conspiracy). 3 Bradley v. Fuller, 118 Mass. 239 (tort for fraudulent represen- tation). PEINCIPAL AND AGENT. 87 CHAPTER IX. PEINCIPAL AND AGENT. §§ 57, 58. Principal's knowledge immaterial. § 59. Agent with beneficial inter- est. § 60. Inducing disobedience of agent. § 61. Partners' responsibility for each other. § 62. Tenancy in common not fiduciary. § 63. Note. § 57. The principles of deceit are adapted to pre- vent the escape from liability of defendants who have intentionally or unintentionally employed dishonest, or reckless, or incompetent agents. § 58. False statements of matters of fact, made as of positive knowledge by an agent not knowing them to be false, and acting within the scope of his agency, are fraudulent and bind his principal ; and it is im- material whether the principal knew that he was to make them, or expressly authorized them. 1 (See § 9.) § 59. When a false representation is made to one who is acting by agreement for the purchaser, the purchaser may maintain an action for deceit notwith- standing the fact that the person to whom the repre- sentation was made had a beneficial interest. 2 1 Jewett v. Carter, 132 Mass. 335 (contract) ; Cook v. Castner, 9 Cush. 266 (contract, and case for deceit, — partner as agent). Com- pare an article entitled " Misrepresentations," 3 Am. Law Rev. 430, and Benjamin on Sales, §§ 455-467, concerning the much-discussed case of Cornfoot v. Fowke, 6 M. & W. 358, and other cases. 2 Tuckwell v. Lambert, 5 Cush. 23 (case for fraudulent represen- tation). 88 THE LAW OF DECEIT. § 60. But if the series of causation leading to damage has many steps, remoteness may prevent the remedy ; for instance, an action for deceit will not lie against a third party who by false state- ments about a boundary of the plaintiff's land to the plaintiff's agent induced the agent to disobey, and thereby to cause damage to the plaintiff. 1 § 61. All the partners are bound by the deceit of one in the sale of partnership property, upon the principle of agency within the scope of employment. 2 § 62. Tenants in common of a vessel, who are not engaged jointly in purchasing or building the vessel for sale, are not by the mere fact of joint owner- ship bound to communicate to each other knowledge of value as persons standing in fiduciary relations. They may deal with one another as strangers. Hence mere non-disclosure by several tenants in common of a contract they had made to sell a whole vessel at a good price was held not to be either actionable or fraudulent as against one tenant in common, whose interest they bought at a lower price. 3 § 63. Note. — See chapter xiv., and Principal and Agent, in Index. 1 Silver v. Frazier, 3 Allen, 382 (tort for deceit). § 1, Outline I., 6. 2 Locke v. Stearns, 1 Met. 560 (case for deceit). See White v. Sawyer, 16 Gray, 586 (tort for deceit), and Metcalf, J., in Parsons v. Winchell, 5 Cush. 592 (case for negligent driving). 8 Matthews v. Bliss, 22 Pick. 48 (case for fraudulent represen- tation). PARTIES. 89 CHAPTER X. PARTIES. § 64. Introductory. § 65. Several purchasers ; abate- ment. § 66. Joint owners ; partners. § 67. Joint defendants ; co-owners. § 68. Note. § 64. The variety of relations and incidents out of which actions for deceit arise is indicated by the following few cases, in some of which the parties to the action occupy positions towards each other pecu- liarly apt to be misleading as to both rights and remedies. § 65. If the persons defrauded have several, not joint, interests, — for instance, if they are purchasers some of whom may, and some of whom may not, have been deceived by the same representations, — then they cannot join as plaintiffs in tort for deceit. And if a defendant settles with one of several persons to whom he is answerable jointly in a personal action, this is a severance of the cause of action, and hence the defendant cannot plead in abatement for want of parties. 1 § 66. Joint owners may join in an action of case for their damages, and against several defendants who joined in a fraud. 2 When the purchase is made in partnership, and the plaintiffs sustain a joint injury 1 Baker v. Jewell, 6 Mass. 460 (case for fraudulent affirmation). 2 Patten v. Gurney, 17 Mass. 182 (case for fraudulent affirmation). 90 THE LAW OF DECEIT. from the defendant, they may join in their snit against him. 1 § 67. Several persons may be made defendants in an action for deceit if they jointly made the repre- sentations, and it is immaterial whether or not they agreed to commit the fraud. The gist of the action is the fraud practised on the plaintiff. It is also im- material whether or not they, or any of them, had any interest in the commission of the fraud. 2 Co-owners of a vessel are jointly liable for false representations in a sale made by one of them acting for both, and although the one who made the representations was by their co-ownership the agent of the other, he is a principal, and as such is rightly made a defendant. They are also jointly liable as partners. 3 Upon either ground the case satisfies the rule that " in an action ex delicto the act complained of must be the joint act of all the defendants, either in fact or in legal intendment and effect." 4 § C8. Note. — See chapters ix., xvii., xix., and Parties and Principal and Agent, in Index. 1 Medbury v. Watson, 6 Met. 246 (case for fraudulent affirmation) ; Patten v. Gurney, 17 Mass. 182 (case for fraudulent affirmation). 2 Stiles v. White, 11 Met, 356 (case for deceit). 3 White v. Sawyer, 16 Gray, 586 (tort for deceit). * Metcalf, J., in Parsons v. Winchell, 5 Cush. 592 (case for negli- gent driving). PLEADING. 91 CHAPTER XI. PLEADING. § G9. Declaration. Fraudulent in- ducement to forbear in- quiry. § 70. Value at certain time. § 71. Scienter, express and im- plied. § 72. Joining tort and contract. § 73. Amendment. Surplusage. § 74. Answer. Tort and contract ; discharge in bankruptcy. § 75. Contract under seal. § 76. Surety ; estoppel. § 77. Fraud pleaded against as- signee. § 78. Effect of answer giving notice of defence in tort only. § 79. Effect of the record upon the answer. § 80. Construction of answer af- ter verdict. § 81. Demurrer. Survival of ac- tion. • § 82. Variance. Form of con- tract. § 83. Gravamen is deceit to hurt, not advantage to deceiver. § 84. Note. Declaration. § 69. Fraudulent inducement to forbear inquiry, when relied on as an additional cause of action, must be specifically pleaded and proved. 1 § 70. A declaration substantially alleging property, which the plaintiff was induced by false representa- tions of the defendant to purchase, to be worthless at the date of the writ, and, if of any value, of less value now than the plaintiff paid, was held to be bad on demurrer, for it did not appear that the property was not worth what the defendant represented it to be worth at the time of his representations. 2 1 Parker v. Moulton, 114 Mass. 99 (tort for fraudulent representa- tion) ; Poland v. Brownell, 131 Mass. 138 (tort for deceit). § 187, n. 3. 2 Squier v. Plunkett, 11 Gray, 11 (tort for fraudulent represen- tation). § 45. 92 THE LAW OF DECEIT. § 71. The scienter must expressly or by necessary implication be alleged in the declaration and proved at the trial. Exception lies to instructions which leave it open to the jury to omit finding this to be a fact or not. 1 The allegation and proof of the scienter is one of the troublesome points. While in certain cases of fraud the scienter may be implied in both the pleadings and the evidence, 2 the safer rule is to allege it expressly. (§ 37, and facing titlepage.) § 72. A count in tort for deceit and a count in contract to recover the price may be joined under the Practice Act (P. S. c. 167, § 2). But of course a plea may be a defence to one and not to the other count. 3 Amendment. § 73. A more accurate statement of the same cause of action in an amendment to a declaration is not a declaration of a new cause of action. 4 Answer. § 74. When there is a count in tort for deceit, although a count in contract is also in the same dec- 1 Hartford L. S. I. Co. v. Matthews, 102 Mass. 221 (tort for fraud- ulent representation). See Dyer v. Lewis, 7 Mass. 281 (case for false affirmation and promise). 2 Litchfield v. Hutchinson, 117 Mass. 195 (tort for deceit). 3 Teague v Irwin, 134 Mass. 303 ; s. c. 127 Mass. 217 (tort for deceit and contract) ; Morse v. Hutchins, 102 Mass. 439 (tort for deceit and contract). 4 Lobdell v. Baker, 3 Met. 469 (case for deceit) ; s. c. 1 Met. 193. For rejection of averments of fraudulent representations as surplus- age in a declaration in contract, see Simmons v. Lawrence Duck Co., 133 Mass. 298 (contract). Trying part of a count, § 87. PLEADING. 93 laration, and the defendant pleads a discharge in bankruptcy, under U. S. St. 1867, c. 176, § 33, the plea is no defence to the action in tort. 1 § 75. The fact that a contract is under seal does not prevent the defence of a plea of fraud. 2 § 76. One who becomes a surety under seal for the payment of a debt due by another, " as recited in the written deed of trust," may maintain in defence a plea that the principal debtor justifiably rescinded the contract for fraud. The surety is not estopped to prove the voidability of the contract which he cannot deny. 3 § 77. A defendant may set up fraudulent repre- sentations against an assignee as well as against his assignor to avoid a contract. One object of protect- ing assignments of choses in action, so far as to allow the assignee to maintain an action in the name of the assignor, is to protect him against any collusion be- tween the debtor arid the assignor. 4 § 78. A defendant in contract averred in his an- swer that the plaintiff induced him to buy a horse by false representations. At the trial the defendant claimed a warranty and a breach. It was held that it was correct to refuse to instruct the jury that the defendant could recoup if there was a breach of warranty ; and it was correct to instruct them that the defendant, in order to recoup, must prove false representations as an inducement, and a scienter. 1 Morse v. Hutchins, 102 Mass. 439 (tort for deceit and contract) ; Gen. St. c. 129, § 2, cl. 5 ; Pub. St. c. 167, § 2, cl. 5. 2 Hazard v. Irwin, 18 Pick. 95 (covenant). But see the opinion as to New York law. § 15. 3 Hazard v. Irwin, 18 Pick. 95 (covenant). § 15. 4 Holbrook v. Burt, 22 Pick. 546 (debt on bond). 94 THE LAW OF DECEIT. The reason is that the defendant's answer merely gave notice of a defence in tort, and not of a warranty and breach of contract. 1 § 79. Although a declaration alleged a sale and conveyance, and the plea averred fraud in defence, and substantially a rescission by the vendee, it was held that it was not necessary also for the plea to aver a return to the custody and possession of the vendor, because it did not appear by the record that the property was ever delivered to the vendee. 2 § 80. A plea to a declaration in covenant stated that by reason of certain fraud a person " refused" to perform the contract ; and it was held that " re- fused" was equivalent to rescinded, especially after verdict. There had been a verdict for the defend- ants, and the plaintiffs had moved for judgment non obstante veredicto. 3 Demurrer. § 81. The plaintiff in an action of tort having died, the question whether the cause of action survives to the administrator who comes in to prosecute the suit was held to be properly presented by demurrer. The defendant had demurred during the plaintiff's life ; and on his death, when the administrator came in the defendant assigned as an additional cause of demurrer that the cause of action did not survive. 4 i Cooper v. Landon, 102 Mass. 58 (contract). See § 9. 2 Hazard v. Irwin, 18 Pick. 95 (covenant). See § 11, note 2. 3 Hazard v. Irwin, 18 Pick. 95 (covenant). * Leggate v. Moulton, 115 Mass. 552 (tort for fraudulent repre- sentation). See § 208. PLEADING. 95 Variance. § 82. In an action of tort for deceit in inducing a purchase, the judge ordered a verdict for the defend- ants on the ground of variance, a sale or purchase having been alleged in the declaration, and the evi- dence having tended to prove a lease or other condi- tional sale. It was held that the gist of the action being the fraud and deceit, and not the form of the contract, the variance was not fatal, and a new trial was ordered. 1 § 83. The gravamen of the charge of deceit is that the plaintiff has been deceived to his hurt, not that the defendant has gained an advantage. As a ques- tion of pleading under a declaration alleging that the defendant represented himself to be the owner of certain property which the plaintiff was induced to buy through his fraudulent representations, it is not a variance not to prove that the defendant was owner ; and as a matter of substance it is immaterial. 2 § 84. Note. — See also chapters i., ii., iii., vi., x., xii., xv., xvii., xix., and Pleading, in Index. For forms in pleading, see Pub. St. c. 167, § 94 ; II. Chitty's Pleading, 16th Am. ed. p. 521 et seq. For false representations not in deceit, and for pleading, see May v. Western U. T. Co., 112 Mass. 90 (tort and contract). 1 Packard v. Pratt, 115 Mass. 405 (tort for deceit). 2 Fisher v. Mellen, 103 Mass. 503 (tort for deceit). 96 THE LAW OF DECEIT. CHAPTER XII. PRACTICE. §§ 85, 86. Nonsuit ; amendment ; surprise. § 87. Trying part of count. § 88. Election of count ; evi- dence ; discretion. § 89. "Weight of evidence. § 90. Proportion of damages. § 91. Withdrawing from jury ; discretion ; waiver of mo- tion. § 92. Special question to jury. § 93. Note. § 85. The growing tendency to liberal rules in practice appears in the actions under consideration. § 86. A nonsuit was taken off after it had been entered by consent, and the plaintiff was allowed to amend his declaration. It was held that " under the circumstances " this was in sufficient season. 1 After a nonsuit because the plaintiffs in an action for de- ceit had failed to prove either the damnum or the in- juria, although facts tending perhaps to show criminal conspiracy had been proved, the plaintiffs moved for a new trial, " on the ground that they had been sur- prised at the former trial, and now have other evi- dence in support of the points which the court have deemed essential." The motion was refused because the surprise was not at the defendant's evidence, but at the judge's requiring other evidence of the plain- tiff; and because the court were not satisfied that the merits were with the plaintiff, and also thought that he was not without remedy, since "a judgment Medbury v. Watson, 6 Met. 216 (case for fraudulent affirmation). PEACTICE. 97 on a nonsuit before verdict is no bar to another action for the same cause." 1 § 87. Even if a material allegation cannot be proved, and part of the count containing it be aban- doned, the count may be good if a sufficient allegation remains to show a cause of action. In the case cited the plaintiffs alleged false representations by the de- fendant of the value of land and minerals, and in the same count false representations about the purpose for which money was needed. The plaintiffs gave notice at the trial that they would not claim on the first allegation. It was held that the remaining alle- gation set forth a legal cause of action. 2 § 88. Where there were counts in contract and tort, the judge presiding at the trial permitted the plaintiff, against the objection of the defendant, to introduce all his evidence indiscriminately in support of the several counts, before electing whether to pro- ceed in tort or contract. It was held that this was within the judge's discretion. 3 Concerning such practice, Chapman, J., said: "If the plaintiff should prove such facts as to establish a valid claim, no tech- nical distinction between actions of contract and actions of tort ought to defeat his right to a judg- ment. . . . No wrong is done to a defendant by per- mitting the plaintiff to state his case in such varied* forms as to enable him to recover upon the facts set forth by virtue of any principle of law that is appli- cable to them. The proper office of a declaration is 1 Morgan v. Bliss, 2 Mass. Ill (case for deceit). 2 Brown v. Pease, 104 Mass. 291, 303 (tort for false representa- tion and contract). § 73. See statement to jury, § 163. 3 Crafts v. Belden, 99 Mass. 535 (tort for conversion and contract). 7 98 THE LAW OF DECEIT. to inform him and the court what facts the plaintiff relies upon, and in such definite form that an issue to the jury can be framed upon it." 1 § 89. The court will not judge of the weight or sufficiency of evidence, but when there is evidence upon a material allegation, leaves it to the jury ; for instance, as to whether it sufficiently appears that the plaintiff paid money relying on certain representa- tions, 2 and as to whether a representation of owner- ship by defendant was false. 3 § 90. Where there is an action of contract and a cross-action for deceit between the same parties con- cerning the same transaction, if the damage in the action of tort is found to exceed the amount due the plaintiff in the action of contract, then there should be a verdict for the defendants in contract, and a verdict for the excess for the plaintiffs in the action of tort. 4 (§§ 186, 187, 194. Recoupment in tort, § 193-) § 91. The presiding judge, at his discretion, may deny a defendant's motion to assume the plaintiff's facts in evidence to be proved, to withdraw the case from the jury, and to direct a verdict for the defend- ant ; and no exception lies to his refusal. Besides, a defendant who, on the refusal to grant such a motion, proceeded to offer evidence was held to have waived his motion. 5 1 Sullivan v. Fitzgerald, 12 Allen, 482 (contract and tort for fraud). 2 Brown v. Tease, 104 Mass. 291, 303 (tort for false representa- tion and contract). 3 Moore v. Cains, 116 Mass. 396 (tort for fraudulent represen- tation). §§161,175. 4 Cook v. Castner, 9 Cush. 266 (contract and case for deceit). 5 Bradley v. Poole, 93 Mass. 109 (contract). PRACTICE. 99 § 92. In tort, a special question of the value of property was left to the jury in addition to the gen- eral verdict. No objection was made to this course. 1 § 93. Note. — See chapters ii., x., xi., xiii., xv., xvi., xvii., xviii., xix., and Practice, in Index. 1 See Hartford L. S. I. Co. v. Matthews, 102 Mass. 221 (tort for fraudulent representation). For other special questions also, in other forms of action, see Somes v. Skinner, 16 Mass. 348 (writ of entry sur disseisin). § 46. 100 THE LAW OF DECEIT. CHAPTER XIII. PKOOF. § 94, 95. Preponderance of evi- dence. § 96. Burden of proof when deceit is a defence. § 97. Implied scienter; good rea- son for knowledge not knowledge. § 98. Variance ; surplusage ; mis- trial ; substantial proof ; Pennsylvania law of de- ceit in sale ; effect of cer- tain concealment. § 99. Verdict against evidence; involuntary payment; con- straint. § 100. Note. § 94. It is frequently a difficult question whether, in certain circumstances and from certain facts, ac- tionable deceit is to be inferred and considered to be proved. § 95. Preponderance of evidence, sufficient reason- ably to satisfy the minds of the jury, is the rule as to false representations, as in " all civil cases." 1 A de- fendant charged with fraudulent representations in a sale requested the judge to instruct the jury " that stronger proof was required to prove fraudulent representations — namely, that the representations alleged were false — than was required to prove an or- dinary sale or agreement." It was held that the judge rightly refused to give this instruction, and that he rightly charged the jury that fraud was not to be presumed, and that the burden was on the plaintiff to prove it by a fair preponderance of testimon}'. 2 i Gordon v. Parmelee, 15 Gray, 413,417 (contract) ; s.c. 2 Allen, 212. 2 Kline v. Baker, 106 Mass. 61 (replevin) ; s. c. 99 Mass. 253. PROOF. 101 § DC. By pleading deceit as a defence in contract, the defendant assumes the burden of proving it. In an action to recover the price of goods sold and de- livered, the defendant answered that the plaintiff had made false representations concerning the goods upon which the defendant had relied, and that the defend- ant immediately returned the goods. After evidence l>y both sides, the defendant requested the court to instruct the jury that " upon the issues raised in the answers relied on the burden of proof was upon the plaintiff." This was refused ; and it was held that the refusal was correct, the burden being upon the defendant to prove a distinct and substantive ground of defence. 1 In an action for rent on a lease, where the defendant alleged that he had been in- duced to execute the lease by fraudulent representa- tions as to its contents, it was held to be error to charge the jury that " if they, on the whole testi- mony, could not say whether the lease had been exe- cuted and delivered under such circumstances as to make it a valid contract, as had been theretofore explained, the verdict should be for the defendant." Fraud is not to be presumed, and the burden of proof is on the party relying on it as a defence. 2 § 97. Sometimes the proof of the scienter is accom- plished by proof of other facts. It is not necessary that all the allegations should be proved, if enough are proved to make out a cause of action. For in- stance, if false representations to induce a purchase and a scienter are alleged, it is enough to prove the false representation and the inducement thereby, if 1 Briggs v. Humphrey, 5 Allen, 314 (contract). 2 Beatty v. Fishel, 100 Mass. 448 (contract). 102 THE LAW OF DECEIT. the scienter is necessarily implied, as when one repre- sents that he knows what he does not know. 1 And it is not even necessary to allege the scienter in a declaration of a false representation as of knowledge which the defendant, by reasonable inquiry and ex- amination, might have known. 1 It has sometimes been argued in behalf of plaintiffs in tort for deceit that knowledge is nothing more than good reason for belief, in order to strengthen the effect of their evidence as to the scienter. But it is not enough for the plaintiff to prove merely that the defendant had reasonable cause to believe his representations to be untrue. This does not sus- tain the allegation that he knew them to be false. Since opinion affects knowledge, the same facts might not give the same knowledge to the defendant as to the jury. 2 In one of the cases cited, Wilde, J., said : " There is no standard of opinion, except in very clear cases." 3 And that learned judge's way of dealing with the practical side of such matters is shown in his opinion in Tryon v. "Whitmarsh, just cited, in the course of which he said : " Perhaps it is not material in which form the question is to be left to the jury, whether the defendant were guilty of a fraudulent concealment, or of making a false affir- mation, knowing it to be false. The evidence which would support one of the allegations would probably support the other. The question is, whether the 1 Litchfield v. Hutchinson, 117 Mass. 195 (tort for deceit). See § 37. § 112. 2 Pearson v. Howe, 1 Allen, 207 (tort for fraudulent represen- tation). 3 Tryon v. "Whitmarsh, 1 Met. 1, 8 (case for fraudulent repre- sentation). PROOF. 103 defendant gave an honest opinion, or was actuated by some fraudulent intention" (p. 9). A defendant in tort for conversion, in order to avoid the plaintiff's title for fraud in a contract of sale, was held to need to prove not merely reasonable cause to know it, but knowledge of it by the plaintiff. 1 (§ 1, Outline L, 2, Scienter.) § 98. The gravamen of the charge of deceit is that the plaintiff has been deceived to his hurt, not that -the defendant has gained an advantage. As a ques- tion of pleading under a declaration alleging that the defendant represented himself to be the owner of certain property which the plaintiff was induced to buy through his fraudulent representations, it is not a variance not to prove that the defendant was owner. And as a matter of substance it is immaterial. 2 If in an action for deceit against several the declaration alleges a conspiracy, this allegation need not be proved. There was a mistrial in the case cited. 3 In an action of tort for false and fraudulent representations, if, giving proper effect to the testimony, the conclusion might fairly be that the defendant made the repre- sentations declared upon, they being actionable, the court will sustain a verdict for the plaintiff. Although the precise phrases and expressions averred are not proved, it is enough if the statements and representa- tions proved are substantially the same as those de- clared upon. For instance, a plaintiff declared upon false representations of the defendant, believing which the plaintiff took upon himself " the prosecu- 1 Carroll v. Hayward, 124 Mass. 120 (tort for conversion). 2 Fisher v. Mellen, 103 Mass. 503 (tort for deceit). 8 Hayward v. Draper, 3 Allen, 551 (tort for deceit). 104 THE LAW OF DECEIT. tion of a contract" of a third party with defendant, but testified that "he did not assume on the part of the third party" the contract with the defendant, but only meant to assist the defendant to do a certain part of the business, and not to take upon himself the third party's obligations to the defendant. Yet the false representations having been substantially proved, the verdict was sustained. 1 An agent of a buyer falsely represented to an agent of a seller that the buyer was worth a large sum, owed nothing, and always bought for cash. The sales were governed by the law of Pennsylvania, which required " artifice, in- tended and fitted to deceive, practised by the buyer upon the seller," to be proved to show such fraud that no title passed. Within ten days a sale was made on a credit of sixty days, and another within that time. Held, in an action of replevin, that the sales were fraudulent and passed no title. 2 Upon the sale of an express business, concealment of a notice from a railroad company to an expressman, who had no contract for a specified time, that on a certain date the company would revoke his express privileges "in order to make such arrangements for the future as may be found desirable," has no tendency to prove that the defendant's representations that the plaintiffs could continue the business and make all needful arrangements with the railroad company were false. Hence a direction for a verdict for defendant was held to be correct. 3 § 99. The following is an interesting case in which 1 Norton v. Huxley, 1 3 Gray, 285 (tort for fraudulent representation). 2 Kline v. Baker, 99 Mass 253 (replevin) ; s. c. 106 Mass. 61. 3 Putney v. Hardy, 99 Mass. 5 (tortfor fraudulent representation). PROOF. 105 the verdict was held to be against the evidence. In an action of assumpsit for money had and received, it appeared in evidence that the plaintiff, a theatre manager, agreed to pay the defendant, an actor, " half the houses," on the actor's representations that such were his terms at other theatres. After a perform- ance the plaintiff wrote to the defendant that he had ground for believing that the defendant played at another theatre for half the net profits ; and it also appeared in evidence that this was correct. But the defendant asseverated that he had half the gross re- ceipts ; and so the plaintiff paid the money. A ver- dict for the plaintiff was set aside as against the law and the evidence, because the defendant was clearly entitled to half the gross receipts by the contract. But it was also held that the payment was not vol- untary with a full knowledge of the facts, and that although the plaintiff relied mainly on the ground of fraud, assumpsit was a proper form of action. It was also held that the following circumstance was a species of constraint which excused the plaintiff's payment : It was advertised that the defendant and his daugh- ter would play on the following night, and he refused to perform unless the money should be paid. Hence, if on the new trial the plaintiff could prove that the defendant's fraud in making the contract induced a payment of more than was just, the plaintiff would have a right to recover such "excess." 1 (p. 549.) (See § 10.) § 100. Note. — See chapters xi., xiv., xv., xvii., xviii., and Proof, in Index. 1 Dana v. Kemble, 17 Pick. 545 (assumpsit). 106 THE LAW OF DECEIT. CHAPTER XIV. EVIDENCE, AND QUESTIONS ARISING BY OBJECTIONS TO EVIDENCE. §§ 101, 102. Evidence as affected by pleading. Deceit in contract ; counts. § 103. Tort and contract ; bar to cross-action in tort. § 104. Fraud; course of dealing. § 105. Conversation ; words not set out. § 106. Infancy as defence. § 107. Answer without specifica- tion. § 108. Usage ; laches. § 109. Examination of witness. Leading questions ; in- ducement; reliance. § 110. Cross-examination as to books. § 111. Knowledge. Relations to business. § 112. Statements as of own knowledge ; proof of ig- norance, when not ad- missible ; when admis- sible. §§ 113, 114. Scienter and circum- stances. § 115. Representation of fact, as to one's own skill. § 11G. As to price paid by third party. § 117. Inducement. Express and direct testimony to. § 118. "Written inducement by re- ceipt. §119. §120. §121. §122. §123. §124. § 125. §120. §127. §128. § 129. § 130. §131. §132. § 133. §134. §135. §136. § 137. § 138. Undue influence. Leading question and cir- cumstances. Contract. Oral evidence of fraud be- fore written contract. Deed and parol repug- nant. Concealment. Expert testimony. As to accident or design. Evidence in rebuttal. Computations from ac- counts. Principal and agent. Repre- sentation by general agent contrary to in- structions. Admission by attorney in declaration. Agent of corporation. Agent of plaintiff and de- fendant ; circumstances. Damages. To avoid multi- plicity of suits. When no injuria is proved. Record of judgment and executions as evidence. Sample. Circumstances. Discretion ; rebutting immaterial evi- dence ; exception. Inducement. Understanding. EVIDENCE, ETC. 107 § 139. Subsequent correspond- ence. § 140. Evidence of articles of same make. § 141. Immediate fraudulent dis- posal of goods. § 142. Subsequent transactions. § 143. Adjudication in bank- ruptcy and proofs of debts. § 144. Knowledge. § 145. Value; immateriality. § 146. Evidence of impulses as showingintention; fraud. § 147. Convenience for examining goods j absence of a party. § 148. Value and price. §149. § 150. §151. §152. §153. §154. §§ 155 §157. §158. §159. Deed without proof of ex- ecution as evidence of representation. Whole conversation. Fraudulent purpose of bankrupt. Res inter alios ; subsequent declaration. Res gestae. Common scheme of fraud ; res inter alios. , 156. Bank-books as to in- solvency ; knowledge of insolvency. False return ; judgment by fraud. General purpose of fraud. Note. § 101. Although some of the decisions cited in this chapter concern the substantive nature of actions for deceit, and what is material thereto, rather than the adjective nature of evidence, nevertheless, the points decided arose by objections to evidence offered, and it is of value to consider them as they actually arose. This is particularly expedient for those who wish to consider, not merely how to argue upon a case after trial, but also how to tr} r it at nisi jprius. Evidence as affected by Pleading. § 102. Evidence of false representations by the plaintiff is admissible in defence to an action of con- tract ; and the presence of a count in tort also in a declaration does not prevent such admissibility. 1 Under a count in contract, rescission being claimed for deceit, evidence of a sale of the property by auc- tion after the deceit was offered by the plaintiff to 1 Jewett v. Carter, 132 Mass. 335 (contract). § 9. 108 THE LAW OF DECEIT. show the balance which he should recover in rescis- sion. It was held that the fact that a count in tort for the deceit was also in the declaration did not prevent the admissibility of such evidence. 1 § 103. In an action of tort for false representations the defendant denied the false representations and the inducement to purchase. The defendant then proved in evidence that he had in an action of con- tract recovered a judgment against the plaintiff, who had then pleaded want of consideration by reason of the false representations, and hence that judgment was for less than the claim. The plaintiff omitted to object at the trial that this evidence was not ad- missible under the answer, and merely contended that the facts proved were not a bar. The judge ruled that they were not a bar, and the defendant excepted. This exception was sustained on the ground that the plaintiff had made his election by availing himself of the fact of false representations as matter of defence in the action of contract, and thereby had waived his right to a cross-action in tort for the same. 2 (See § 186, upon avoiding election.) § 104. In an action of contract on a bill of ex- change, when the answer says that the defendant's acceptance was obtained by fraud and without con- sideration, and that the plaintiff took the bill with knowledge thereof, the defendant may prove the gen- eral course of dealing of the plaintiff in notes, and for that purpose may ask him what other notes he had taken of a party to the transaction, and what 1 Teague v. Irwin, 134 Mass. 303 (tort for false representation and contract) ; s. c. 127 Mass. 217. 2 Burnett v. Smith, 4 Gray, 50 (tort for false representation). EVIDENCE, ETC business he had done with him bill. 1 109 before taking this 5 the representations complained of may be proved, al- though only the words relied on are set out in the declaration. This is to show whether they were qualified or absolute ; in short, their meaning. 2 § 106. In assumpsit against a minor who pleads infancy, evidence that the defendant falsely repre- sented himself to be of full age is not admissible, for such a representation would not affect the defence of infancy. 3 § 107. In contract, if the answer alleges that " if she (the defendant) purchased any goods, she did so through the false and fraudulent representations made by the plaintiff," without any specification of what the representations were, evidence of them is admissible, even under Gen. Sts. c. 129, § 20 (Pub. Sts. c. 167, § 20), requiring that " the answer shall set forth in clear and precise terms each substantive fact intended to be relied upon in avoidance of the action." If the plaintiff wished specifications, he should have asked for them under Gen. Sts. c. 129, § 58 (Pub. Sts. c. 167, § 61). 4 § 108. In an action on the case, the declaration alleged that certain cotton sold to the plaintiffs by the defendants, who had bought the cotton as packed, had been fraudulently packed. It was held that evi- dence was admissible of a usage to notify the seller 1 Chelsea v. Goodsell, 107 Mass. 149 (contract). 2 Pedrick v. Porter, 5 Allen, 321 (tort for deceit). § 169. 3 Merriam v. Cunningham, 11 Cush. 40 (assumpsit). 4 Goodsell v. Trumbull, 135 Mass. 99 (contract). 110 THE LAW OF DECEIT. of the fault as soon as practicable, to give him oppor- tunity to examine the goods and to furnish him with the planter's marks and other proofs, in order that he might, if liable, recover for himself against others, if in fault. 1 Examination of Witnesses. § 109. A defendant's counsel in an action of con- tract was rightly allowed to ask the defendant, " What induced you to sign the papers and complete the trade ? " the answer being certain representations of the plaintiff. 2 The plaintiff's counsel was held to have been rightly allowed to ask the plaintiff " Whether you sold the leather to G. relying upon his representations," and "In consequence of his representations . . . did you," &c. 3 § 110. The defendant charged with deceit con- cerning shares of a company put on as a witness the treasurer of the company, who produced his journal or cash-book, and testified that he showed it to the plaintiff before the plaintiff bought his stock. It was held that the plaintiff might cross-examine the wit- ness as to the manner of keeping the book, and to show that it was not fairly kept, and did not contain a correct statement of the affairs of the company. 4 Knowledge. § 111. To meet an allegation in the declaration that the defendant, a bank director, knew his state- i Casco M. Co. v. Dixon, 3 Cush. 407 (case for fraudulent packing). 2 Knight v. Peacock, 116 Mass. 3G2 (contract). 3 Safford v. Grout, 120 Mass. 20 (tort for false representation). 4 Teague v . Irwin, 134 Mass. 303 (tort for fraudulent representa- tion and contract) ; s. c. 127 Mass. 217. EVIDENCE, ETC. Ill ments to be untrue, he may put in evidence stating his relations to the bank, and tending directly to show that he did not know that the bank was unsound. 1 § 112. Statements by the president of a railroad company of its condition in detail may be found by a jury to be representations of which he professed knowledge, and not the expression of opinion or an estimate. Hence such statements were held to be admissible under a count in tort, and also under a count for money had and received. 2 In an action of tort for deceit, the plaintiff's counsel stated that he should not claim that the defendant had personal knowledge of the property, but claimed that the de- fendant made representations about it as of his own knowledge which were false in fact. Hence it was held that evidence offered by the defendant to prove that he had no such knowledge, and was misinformed by others, was not admissible. 3 But in another case, the scienter having been alleged in a declaration in tort for deceit, and the defendant offering to testify as to his opinion and knowledge, the plaintiff objected, because he relied exclusively on the defendant's state- ment. The question was admitted, and after a verdict for the defendant it was held to have been correctly admitted, because it being competent within the pleadings, and the exceptions failing to show that it was not adapted to the real issue, the presumption is in favor of the ruling at nisi prius.* The case of Fisher 1 Cole v. Cassidy, 138 Mass. 437 (tort for deceit). 2 Teague v. Irwin, 127 Mass. 217 (tort for fraudulent representa- tion and contract) ; s.c. 134 Mass. 303. 3 Fisher v. Mellen, 103 Mass. 503 (tort for fraudulent represen- tation). § 1, Outline I., 2, Scienter. 4 Bannister y.Alderman,lll Mass. 261 (tort for false representation). 112 THE LAW OF DECEIT. v. Mellen, stated just above, is expressly adhered to, however, as an authority. There, such evidence was held to be not admissible, because it appeared that the plaintiff's counsel said at the trial that he relied on the statement made, as of the defendant's own knowledge. But here no such narrowing of the issue was made. Testimony by others as to the fact represented was held to be admissible on the same ground. The rule laid down by the court in Ban- nister v. Alderman, concerning evidence of opinion in such cases, is as follows : " When offered b} r the defendant it should be admitted or excluded ac- cording as the presentation of the case appears to involve a question of wilful purpose to deceive or otherwise." § 113. The scienter being directly in issue, the defendant charged with deceit in the sale of a horse may both testify that he had no knowledge of the alleged faults of the horse, and also testify and show affirmatively by other witnesses the substance of a conversation between the defendant and the person from whom he bought the horse, and learned all he knew about it before the sale to the plaintiff, although the plaintiff was not present at the conversation. It is material for the defendant to show what informa- tion he had, and to show that he did in fact believe it to be true. 1 § 111. A mortgage to the defendant, by the person alleged to have been falsely recommended by the de- fendant, before the time of recommendation, was held to be competent 2 as tending to prove knowledge that 1 Beach v. Bemis, 107 Mass. 498 (tort for deceit). 2 Safford v. Grout, 120 Mass. 20 (tort for false representation). EVIDENCE, ETC. 113 the mortgagor could not then pay his debts in the ordinary course of business. Representation of Fact. § 115. A statement by one that he is " a first-rate salesman " is not a ground for rescission of a contract of hiring him, and is immaterial and incompetent. The statement was not accompanied by affirmation of any specific fact, and there was no evidence that the words used had acquired a precise and definite meaning among men of business. 1 § 116. It is competent for the vendee, a plaintiff in tort for deceit, to prove that the representation made by defendant, the vendor, as to a past price paid by a third party, is false and fraudulent. 2 Inducement. § 117. The plaintiff may testify expressly that he relied on certain representations of the defendant, and that he was induced thereby to purchase. 3 § 118. In an action of contract on a promissory note, the defendant alleging in defence false repre- sentations as to who should constitute the local board of directors, a written receipt stating that " This pay- ment will be returned by the undersigned if the policy should not be issued or local board of directors organized by the company," was held to be admis- sible to show fraudulent statements, inducing the defendant to enter the contract. 4 1 Blair v. Laflin, 127 Mass. 518 (contract). § 2, Outline II., 2, A. 2 Belcher v. Costello, 122 Mass. 189 (tort for deceit). § 28. 3 Pedrick v. Porter, 5 Allen, 324 (tort for deceit). 4 Penn. M. L. I. Co. v. Crane, 134 Mass. 56 (contract). 114 THE LAW OF DECEIT. § 119. In order to prove that a demandant in a real action was induced by the fraud of the tenant to convey land to him, it is competent to show that the demandant was a person of feeble understanding, so that he might be defrauded by artifices which would not have prevailed against common men, and that the tenant had acquired an extraordinary influ- ence over him. And to prove this influence, evidence of the transactions between them, both before and after the conveyance, is admissible. 1 § 120. An agent of one who sought to rescind a sale for deceit, while making his deposition as to ne- gotiations between himself and one Burleigh, an agent of the buyer, before the sales in question, gave the following answer to the following interrogatory : " State whether or not the representations made to you by Burleigh had any influence in inducing you to accept said order (of June 27) on behalf of the plaintiff." Answer. " Yes, they had such influ- ence." It was held that such interrogatory was ad- missible, and that such evidence warranted the jury in finding, under instructions as to the law of Penn- sylvania, 2 that such representations induced the sale referred to and a subsequent sale, although the plain- tiff did not learn of the representations until the subsequent sale, and although the order for the sub- 1 Somes v. Skinner, 16 Mass. 348 (writ of entry sur disseisin) and note, p. 361. 2 "The plaintiff must show some artifice intended and fitted to deceive, practised by the buyer on the seller, some materially false and fraudulent representation which induced the sales " (pp. 64, 65 of case cited below). This action was in replevin, and the plaintiff was trying to show that the sales were induced by false represen- tations. EVIDENCE, ETC. 115 sequent sale was sent by the buyer directly to the plaintiff and not through the witness. 1 Contract. § 121. Oral testimony of representations made be- fore a written contract is admissible, if tending to prove fraud. 2 § 122. When a note has been given for a deed, and an 'action of contract is brought on the note, and the answer is failure of consideration, then parol evidence that there was an agreement to convey more land than the deed conveyed is repugnant to the deed, and inadmissible. 3 § 123. Parol evidence is not admissible to control a written contract in a suit against one for falsely representing that his principals had authorized him to sign the contract as attorney ; for instance, to show that the contract was to indemnify the plaintiff against a particular claim, and not generally, as it purported to do. 4 § 124. Evidence that a buyer of standing wood, after secretly measuring a lot and finding it to con- tain sixteen acres, falsely represented to the owner that it contained about eight acres, is sufficient to be submitted to a jury to determine whether the con- tract might be rescinded. 5 1 Kline v. Baker, 106 Mass. 61 (replevin) ; s. c. 99 Mass. 253. 2 Holbrook v. Burt, 22 Pick. 546 (debt on bond). 3 Bennett v. "Ryan, 9 Gray, 204 (contract). 4 Jones v. Walcott, 2 Allen, 247 (tort for false representation). 5 Prescott v. Wrigbt, 4 Gray, 461 (tort for breaking and entering plaintiff's close). 116 THE LAW OF DECEIT. Expert Testimony. § 125. A question whether a certain schedule was incorrectly made from accident or design was held not to be one upon which expert testimony should be admitted. 1 § 126. In an action for deceit for fraudulently in- ducing the plaintiff to buy a machine, the defendant showed to the jury a model of the machine not ad- mitted to be correct, and the plaintiff in rebuttal called an expert, and it was held that the expert might be asked, " Whether or not a machine made according to that model could be successfully used after a few trials." Hoar, J., said : " It was not new evidence to support the issue in chief, because he (the plaintiff) denied the correctness of the model ; but it was evi- dence offered and competent for the single purpose of impairing the effect of a piece of testimony intro- duced by the defendants." 2 § 127. Account-books and schedules having been rightly admitted, an expert who has examined them may, at the discretion of the presiding judge, state the results of his computations, but not deductions and inferences of his own judgment. 3 Principal and Agent. § 128. Representations by a general agent, even if made contrary to his principal's express instructions, are admissible to prove deceit against the principal, both because of his being held out as general agent, 1 Stone v. Denny, 4 Met. 151 (case for deceit). 2 Hayward v. Draper, 3 Allen, 551 (tort for deceit ; mistrial). 3 Jordan v. Osgood, 109 Mass. 457 (replevin). EVIDENCE, ETC. 117 and also to show whether the plaintiff, a purchaser, relied upon this or that representation. 1 § 129. A defendant tried to recoup in an action of contract by proving deceit. The plaintiff offered in evidence a declaration in an action brought by the defendants to show that less damage was then claimed. This was admissible in evidence as an admission with- in the scope of the attorney's agency, since it was not a mere technical statement of a cause of action, but contained specific averments which must have come from his principal. 2 § 130. The acts and declarations of an agent, while agent of a defendant corporation attending the nego- tiation and sale complained of in an action for deceit, are admissible upon the question of what representa- tions were made. 3 § 131. A purchaser, a defendant, examined spokes in the absence of the seller, and said to the seller's brother that he would give certain prices. Then he told the brother to tell the seller that he had been there, and would trade with him for a carriage, if they could agree, in exchange for the spokes. The seller, who was plaintiff, was asked, " What did your brother tell you that the defendant told him to tell } 7 ou?" and was allowed to state all that is above stated about prices in addition to the mes- sage about the carriage. It was held that the de- fendant made the brother his agent to communicate the whole offer as well as that part about the car- 1 Lobdell v. Baker, 1 Met. 193 (case for fraud) ; s. c. 3 Met. 469. §58. 2 Gordon v. Parmelee, 2 Allen, 212 (contract) ; s. c. 15 Gray, 413. 3 Salem I. It. Co. v. Adams, 23 Pick. 256 (case for deceit). 118 THE LAW OF DECEIT. riage, and that the communication being substantially correct was admissible as authorized. 1 Damages. § 132. To avoid circuity and multiplicity of suits, the parties and the transaction being the same, the defendant in an action of contract may give in de- fence the same evidence of a false representation to reduce the damages as would enable him to recover in an action of tort. *This is a modern rule. 2 § 133. The plaintiff offered to show what the goods were worth when purchased, and what they after- wards sold for. But the plaintiff had failed to prove an injuria, and it was held that evidence to prove the extent of plaintiff's damage is not admissible when no actionable wrong is proved against defendant. 3 § 131. To prove damages when an officer has been falsely led to take property from another officer and to sell it on execution, the record of judgment, and the executions and levies in the several cases, are competent to show the appropriation and the amount which was obtained on conversion and sale. 4 § 135. Testimony concerning a sample of goods which is otherwise inadmissible cannot be held to be admissible in diminution of damages, on the ground that a part of the goods sold was inferior, when the point was neither taken at the trial nor ruled upon. 5 1 Brown v. Leach, 107 Mass. 364 (contract). 2 Cook v. Castner, 9 Cusli. 266 (contract and case for deceit) ; Harrington v. Stratton, 22 Pick. 510 (assumpsit). §§ 186, 187, 194. 3 Poland v. Brownell, 131 Mass. 138 (tort for deceit). 4 Jones v. Walcott, 2 Allen, 247 (tort for false representation). 5 Brown v. Leach, 107 Mass. 364 (contract). EVIDENCE, ETC. 119 Circumstances. § 136. The admission of evidence to rebut imma- terial evidence is discretionary with the court, and not open to exception. 1 § 137. In an action of contract on a promissory note, evidence offered by the defendant of false rep- resentations that certain persons had agreed to be- come members of the board of directors of the plaintiff, an insurance company, was held to be ad- missible to show fraud as a defence. 2 § 138. A plaintiff may testify that he supposed the money in question was to be paid for a certain pur- pose, when the defendant, in construing a written modification of a written contract, " contended " that the plaintiffs did not so understand. It does not appear whether the defendant testified to what he " contended." 3 § 139. In an action of tort for deceit, a letter from the plaintiff to the defendant suggesting charges of false representations and attempting to obtain a set- tlement is not admissible in favor of the plaintiff.* § 140. In an action of contract, the defendants, after having answered alleging that they were induced by the plaintiff's false representations as to a certain 1 Teague v. Irwin, 134 Mass. 303 (tort for fraudulent representation and contract) ; s. c. 127 Mass. 217. 2 Penn. M. L. I. Co. v. Crane, 134 Mass. 56 (contract). 3 Brown v. Pease, 104 Mass. 291, 303, see 309 (tort for false rep- resentation and contract). 4 Percy v. Bibber, 134 Mass. 404 (tort for fraudulent representation). As to the admissibility, in an action of contract, of evidence of negotiations which led to an agreement, to meet evidence of false representations, see Levin v. Vannevar, 137 Mass. 532 (contract). 120 THE LAW OF DECEIT. manufactured article to enter into the contract, of- fered testimony that other articles manufactured and sold by the plaintiff to other parties, and identical in their construction with the article in question, were of the same injurious character which they had dis- covered as belonging to the article in question. It was held that the evidence was rightly admitted upon the issue of fraud. 1 § 141. Upon the issue of a buyer's fraudulent in- tent, evidence that as soon as he received goods he shipped them to a distance without taking them to his store, with evidence that under such circumstances goods could not be sold at a profit, was held to be admissible. 2 § 142. Evidence of false ' representations by the agent of the buyer in certain sales having been given, evidence was offered of purchases, subsequent to such representations, made by the buyer or his agent from other persons than the plaintiff, some of which were not paid for. The judge admitted the evidence so far as it bore upon the intent of the buyer's agent at the time that he made the said representations, and instructed the jury that they were not to con- sider it unless they first found that the representa- tions were made, and that they were false. The judge also admitted evidence that a month after the said representations the buyer's agent said that " he would show them a Yankee trick." It was held that the evidence of the purchases, though not paid for, being unaccompanied by any evidence of fraud therein, and the said statement a month after the 1 Waters' P. H. Co. v. Smith, 120 Mass. 444 (contract). 2 Kline v. Baker, 106 Mass. 61 (replevin) ; s. c. 99 Mass. 253. EVIDENCE, ETC. 121 representations, had no legitimate tendency to prove fraud practised upon the plaintiff, even if the jury were already satisfied of the making and the false- ness of those representations, and since such evidence may have prejudiced the jury in favor of the plaintiff, the defendant's exception was sustained. 1 § 143. Affidavits, vouchers, and proofs of debts by defendant against the bankrupt, whose credit he had falsely recommended, were held to be competent. Also the adjudication in bankruptcy was held com- petent as a foundation for the proofs of debts only. 2 Testimony of a broker that he received from defend- ant notes of the person falsely recommended, to be sold, and that he proved the notes in bankruptcy ; and the proofs and notes were held competent. 2 § 144. Testimony that a claim against the person falsely recommended was settled by a note of that person indorsed by defendant, was held competent to show defendant's knowledge. 2 § 145. It is immaterial that a mortgage and mort- gage note taken by the plaintiff were not assigned to him by the defendant, when the allegation is that false representations were made about their value as collateral security, and they were delivered. 3 § 146. Evidence that the defendant, in an action of trespass on the case for deceit, is a man of sudden impulses and movements, is admissible as tending to show that no fraud was intended. 4 § 147. In an action of case for deceit in the sale of shoes, the plaintiff put in evidence to show that the 1 Kline v. Baker, 106 Mass. 61 (replevin) ; s. o. 99 Mass. 253. 2 Safford v. Grout, 120 Mass. 20 (tort for false representation) 3 Belcher v. Costello, 122 Mass. 189 (tort for deceit). 4 Lobdell v. Baker, 1 Met. 193 (case) ; s. c. 3 Met. 469. 122 THE LAW v OF DECEIT. boxes were inconveniently arranged to prevent a fair examination. Hence it was held that the defendant's witness might testify that he had examined the same lot of shoes at in and about the same time, place, and circumstances, and that the defendants offered him every facility ; and this was admissible, notwithstand- ing the fact that the plaintiff was absent during such examination. 1 § 148. In case for deceit, evidence to prove that the price paid to the plaintiff was the actual value is admissible ; and evidence of what the defendants sold the same property for is also admissible, because both may bear on the alleged fraud in bringing about the sale. 2 § 149. In tort for conversion, a deed was properly admitted in evidence without proof of its execution by the attesting witness, on the ground that it was the paper delivered by the defendant as the title to real estate, concerning which he made false represen- tations to the plaintiff, who gave him personal prop- erty therefor. 3 § 150. Evidence of all that the defendant said about the matter in question when he made the rep- resentations complained of is admissible, although only the words relied on are set forth in the declara- tion, for the accompanying language shows whether they were qualified or not. 4 § 151. The amount of liabilities of parties charged with a fraudulent purchase at the time of their fail- 1 Salem I. R. Co. v. Adams, 23 Pick. 256 (case for deceit). § 69. 2 Matthews v. Bliss, 22 Pick. 48 (case for fraudulent representation). 3 Skinner v. Brigham, 126 Mass. 132 (tort for conversion). * Pedrick v. Forter, 5 Allen, 324 (tort for deceit). EVIDENCE, ETC. 123 ure is competent to show their financial condition a few clays before, when the purchase was made ; and it may be shown by the assignees in bankruptcy. The amount realized from their assets after the failure is also competent to show their value at the time of the failure. But the record of adjudication in bank- ruptcy is incompetent as inter alios. The petition in bankruptcy of the persons charged with the fraud is incompetent as in the nature of a subsequent decla- ration impeaching a sale previously made. 1 § 152. Although evidence of other purchases as part of a scheme of fraud attempted to be proved in an action of replevin is admissible, evidence that some of the other parties of whom such purchases had been made had brought suits and abandoned them is in- competent as inter alios? § 153. In an action of tort for conversion, in which the plaintiffs attempt to prove that they relied on and were in fact misled by the fraudulent representations of one defendant, which were known and participated in by the other defendants, concerning the identity of the purchaser, the orders, bills of lading accom- panying them, invoices sent in the usual course of business, and the transcripts thereof delivered be- tween the parties, are competent. They are also competent as inseparable parts of the transactions of sale and delivery. The bills of lading and transcripts are also competent to show that the defendants knew the plaintiffs were deceived. Evidence of the price at which certain of the defendants sold the goods is 1 Haskins v. Warren, 115 Mass. 514 (replevin). See Horton v. Weiner, 124 Mass. 92 (charges of fraud, poor debtor process). 2 Haskins v. Warren, 115 Mass. 514 (replevin). 124 THE LAW OF DECEIT. admissible as tending to show that they knew of and participated, in the fraud. 1 § 154. In replevin, the plaintiffs tried to prove their right to rescind a sale by showing both false represen- tations by the defendant as to his pecuniary condition and an intention on his part not to pay for the goods purchased. Evidence was offered of similar falsi representations by the defendant about the same time to other persons. It was held that both issues being before the jury, if the testimony was competent upon either it was admissible. But it was also held that on the issue of false representations it was not admis- sible, because it was equally consistent with an affirma- tive or negative decision of the question whether the defendant committed that fraud on the plaintiff. It was also held that on the issue of an intention not to pay, it was not admissible, because a common purpose in both frauds was not shown. On this point the common purpose is the test. The jury found for the plaintiff on the issue of false representations, and the plaintiff's counsel argued that hence the excep- tion to the admission of evidence held incompetent on that point was immaterial. But it was held that the evidence was calculated to prejudice the jury against the defendant on that issue, and its admission was a sufficient reason for sustaining the exception. 2 § 155. The books of a bank, supported by the oath of the bookkeeper, are admissible to show what money was had in the bank by a person whose insolvency is one of the issues in question. 2 1 Packer v. Lockman, 115 Mass. 72 (tort for conversion). 2 Jordan v. Osgood, 109 Mass. 457 (replevin). EVIDENCE, ETC. 125 § 156. The state of the bank-account of parties charged with a fraudulent purchase, and their mode of overdrawing for a week or more before the pur- chase, is competent as tending to show that they must have been aware of their condition. 1 § 157. When a judgment creditor sues a sheriff for a false return, evidence is admissible in defence to prove that the judgment and execution were obtained upon a fraudulent contract. 2 § 158. Evidence of other purchases by parties charged with fraud in a purchase in question, made of other parties about the same time, may be compe- tent, if so connected as to show a general purpose in the transactions, or that they were conducting busi- ness in some unusual manner indicating an expec- tation of failure. 3 § 159. Note. — See chapters xi., xii., xiii., xv., xvi., xvii. xviii., and Evidence, in Index. 1 Haskins v. Warren, 115 Mass. 514 (replevin). 2 Pierce v. Jackson, 6 Mass. 242 (case for false return). 8 Haskins v. Warren, 115 Mass. 514 (replevin). See Stockvvell v. Silloway, 113 Mass. 384 (charges of fraud, poor debtor process); Horton v, Weiner, 124 Mass. 92 (charges of fraud, poor debtor process). 126 THE LAW OF DECEIT. CHAPTER XV. CHARGE TO THE JURY. § 160. Introductory. § 161. Weight of evidence. § 162. No evidence by defendant ; presumption. § 167. Predominant motive unnec- essary. § 168. Inference from circum- stances. § 163. Omission to instruct on j § 169. Words not alleged, but proved. § 170. Opportunity to examine. § 171. Representations of agency. § 172. Relevancy. law ; omission to instruct after request ; waiver ; statement by counsel. § 164. Misleading distinctions ; opinion and fact. | § 173. Means of knowledge. § 165. Evidence not conclusive. § 174. Concealment. §166. Issues, scienter; requiring § 175. Materiality; fact for jury. excess of proof; implied j § 176. Omission to request. intent. | § 177. Note. § 160. The word " charge " is convenient as the word "action " is. Each signifies groups of principles and of cases which may also belong under some more specific head, but which aid one generally in consid- ering how to bring, or how to proceed in, an action. A judge's omissions to instruct the jury, with and without requests for instructions by any party, his refusals to give instructions asked for, his modes of statement in instructions given, his substantial and misleading distinctions, his mistakes in assuming facts which should be left to the jury, his errors in law, his ambiguities, his comprehensive and correct rulings, his liberties in language and expression, and some of the methods and tests which the Supreme CHARGE TO THE JURY. 127 Judicial Court applies in its construction of his charge, are shown by the following cases, which are selected as particularly instructive under this head. § 161. The weight of evidence is not for the court but for the jury to find. 1 § 162. When a defendant rests his case without offering any evidence, it would be error to instruct the jury that such omission was no ground for any presumption against the defendant. 2 § 163. Omission to instruct the jury on a question of law is not subject to exception, unless the question be raised at the trial, and the court be requested to instruct the jury upon it. 3 An omission to state the necessity of the scienter in charging the jury is fatal to a verdict for plaintiff in an action for deceit, upon exception, if the defendant has requested a ruling on the point. In the case cited the point arose in defence to an action of contract. As a matter of practice, it is to be observed that the court held (p. 551) that a statement by the defendant's coun- sel in the presence of the jury, in reply to a question by the plaintiff's counsel, settled the point that a certain ground of defence was not waived. 4 § 164. If there is no evidence of an affirmation of fact by the defendant, it is error to instruct the jury to distinguish between an expression of opinion as an opinion, and an expression of opinion as a repre- 1 Brown v. Pease, 104 Mass. 291, 303 (tort for false representa- tion and contract) ; Moore v. Cains, 116 Mass. 396 (tort for fraudu- lent representation). §§ 89, 175. 2 Cheney v. Gleason, 125 Mass. 166 (bill in equity for fraudulent representation) ; s. c. 117 Mass. 557. 3 Holbrook v. Burt, 22 Pick. 546 (debt on bond). 4 King v. Eagle Mills, 10 Allen, 548 (contract). 128 THE LAW OF DECEIT. sentation of fact. Such an instruction is inapplicable and misleading. 1 It is error to rule as a matter of law that the representation that a party is in good pecuniary circumstances and able to pay certain notes, which is equivalent to a representation that he is good, is necessarily the representation of a fact. The defendant had given certain notes as security. It was held that G. S. c. 105, § 4 (P. S. c. 78, § 4), was not applicable, the purpose of the representation not being to enable a third person to obtain credit. 2 Some- times a person's statements — for instance, concerning his own pecuniary standing — are such that it is a question of fact whether he intended to state merely his opinion, or intended to misrepresent a fact; and therefore the jury must find which it was. 3 Whether a representation as to another's financial ability to pay a debt is of a matter of opinion or a matter of fact, is usually a question for the jury, and was so in the case cited. 4 § 165. The price at which a defendant sold prop- erty, which he is alleged to have bought too cheap by fraudulent representations, is strong evidence of its value, but not conclusive. 5 § 166. In tort for falsely representing a note to be unpaid, the record of a judgment in a former suit on the note against the makers, of which the defend- ant in this suit had notice, although it tends to prove 1 Veasey v. Doton, 3 Allen, 380 (tort for deceit). 2 Belcher v. Costello, 122 Mass. 189 (tort for deceit). See § 7. 3 Morse v. Shaw, 124 Mass. 59 (replevin). * Stubbs v. Johnson, 127 Mass. 219 (tort for fraudulent represen- tation). 5 Matthews v. Bliss, 22 Pick. 48 (case for fraudulent representa- tion). CHAEGE TO THE JUBY. 129 that the note had been paid to him, as pleaded in the former suit, is not conclusive evidence of his knowledge of such payment; for such a ruling would treat the question of payment as if it were the only issue, whereas the scienter must be proved. 1 It is error to charge the jury that although the defendant induced the plaintiff to purchase by false represen- tations, known to be such by the defendant at the time, nevertheless the defendant is not liable unless the plaintiff "further proved" intent. The facts assumed imply that intent exists. 2 § 167. It is error to charge the jury that an action- able false representation must have been a "predom- inant " motive in inducing a sale. 3 § 168. A plaintiff in replevin asked the judge to instruct the jury that if the purchaser represented to the sellers, the plaintiffs, that he was worth $6,000, and was coming in to buy goods of them, and did subsequently buy of them the goods in question, and the plaintiffs were induced to sell and deliver the goods to him by this representation that he was worth $6,000, and the jury believe that this representation was untrue, the plaintiffs are entitled to a verdict. The judge, instead of this, told the jury substantially that fraud must be proved by showing either that the purchaser knew he was making a false statement, or knew that he was " affirming as to the existence of a fact about which he was ignorant ;" and if under the circumstances the purchaser made false statements 1 Sibley v. Hulbert, 15 Gray, 509 (tort for false representation). 2 Collins v. Denison, 12 Met. 549 (case for deceit). See § 37. 3 Matthews v. Bliss, 22 Pick. 48 (case for fraudulent represen- tation). § 48. 9 130 THE LAW OF DECEIT. about his intention and property, they could find from that that he did it fraudulently. Held, that the plain- tiff had no ground for exception. 1 § 169. A declaration in deceit contained, in addi- tion to actionable matters, an allegation of represen- tations of future profits. The judge instructed the jury that the plaintiff must prove that he was induced •• by one or more of the representations alleged in the declaration to be false and fraudulent, and proved to be such, . . . and that any other representation made by the defendant" might be considered. It was held that, while this was somewhat ambiguous, it related to words proved but not stated in the declara- tion, and that as to them the charge was correct. 2 § 170. In an action for deceit in the sale of goods, it is correct to charge the jury that if the plaintiffs had the full means of detecting the fraud, if any fraudulent representations were made, and of ascer- taining the truth for themselves by an inspection of the goods, they could not maintain this action. 3 § 171. The assignee in insolvency of a deputy sheriff brought an action of tort against an attorney who had misled the officer by falsely representing that a contract of indemnity signed by the attorney for his principals was authorized. It was held that the following instructions to the jury were correct: " To justify the jury in returning a verdict for the plaintiff, they must be satisfied upon all the evidence before them that the defendant had no right, either from previous appointment or subsequent ratification, i Morse v. Dearborn, 109 Mass. 593 (replevin). § 1, Outline I., 2. s Pedrick v. Porter, 5 Allen, 324 (tort for deceit). § 105. 3 Salem I. R. Co v. Adams, 23 Pick. 256 (case for deceit). § 2. CHARGE TO THE JURY. 131 to sign the contract as attorney for the parties in whose behalf it purported to be executed ; that he falsely pretended that he had such authority knowing that he had not, or having no reason to suppose that he had ; and that the plaintiff insolvent, upon the faith of that representation, proceeded to perform official acts, and thereby to incur liabilities, and that by so acting and being so misled he had sustained loss and damage." 1 (§ 1, Outline I., 1-6.) § 172. A contract of indemnity by the defendant to a deputy sheriff for selling property " on the exe- cutions in his hands at this time," specifying them, " and from all cost, charges, damages, and expenses whatsoever that may result or accrue to him for at- taching or selling" the property of a certain corpora- tion, was rightly held to be an agreement to indemnify the sheriff (the plaintiff) for service then made, but not to protect him against the consequences of his acts under other processes which he subsequently re- ceived. The defendant had falsely represented that he had authority as attorney to sign the contract. And the ruling so approved was held to be so limited as to be sufficiently favorable to the defendant. 1 § 173. In an action of tort for deceit against a director of a bank, the court was held to have cor- rectly instructed the jury in substance as follows: " That the plaintiff could recover, if he proved that the defendant represented, as an existing fact, that the bank was sound ; that the plaintiff was thereby induced to act; that in fact the bank was not sound, and that the defendant then knew that it was not sound ; or that the fact of the soundness of the bank 1 Jones v. Wolcott, 2 Allen, 247 (tort for false representation). 132 THE LAW OF DECEIT. being a fact within his means of knowledge, he stated that the bank was sound, having no knowledge of that fact ; and further, that, if these facts were estab- lished, the defendant would be liable, although he believed, and had reasonable cause to believe, his representations to be true." 1 § 174. The defendant employed the plaintiffs as brokers to sell a house, and having received informa- tion from them which led to a sale made by himself, he settled with them for a trifle, not telling them the name of the purchaser. It was held that it was for the jury to find whether there was such a conceal- ment of a material fact as to entitle the plaintiffs to avoid the settlement, and hence it was error to charge the jury that the concealment, if found as stated, pre- vented the plaintiffs from being bound by the settle- ment. 2 § 175. In an action of tort for fraudulent represen- tations in inducing the plaintiff to enter into a part- nership, it was held that the judge, after instructing the jury as to what was "substantial," rightly left to the jury the finding of the materiality of the defend- ant's representations, which were that he would con- tribute to the partnership certain real estate, the fact being that his wife owned the property, and had orally authorized him to use it during the term of the partnership. 3 (§§89, 161.) § 176. In an action on a promissory note, the de- fendant claiming a breach of warranty of horses for 1 Cole v. Cassidy, 138 Mass. 437 (tort for deceit). § 1, Outline I., 2. 2 Newhall v. Pierce, 115 Mass. 457 (contract). §§ 34, 35. 3 Moore v. Cains, 110 Mass. 396 (tort for fraudulent representa- tion.) " Such a permissive privilege would not be a substantial com- pliance with the representation of ownership, if made." CHARGE TO THE JURY. 133 which the note was given, the judge charged the jury that upon the evidence, the note having been proved, " the plaintiff would be entitled to recover, unless it was made to appear that there was a warranty and a breach thereof, or false representations, as alleged by the defendant." No request having been made for other or different instructions, the defendant alleged exceptions. The defendant had argued to the jury that if they were in doubt as to whether there was a warranty and a breach or false representations, the defendant should have the benefit of such doubt ; and the plaintiff's counsel, in his closing argument, did not controvert this. It was held that the charge was according to law, and that if the defendant wished, he should have asked for more special instructions as to the point which he had argued to the jury. 1 § 177. Note. — See chapters xvi., xix., and Charge, in Index. 1 Packard v. Clapp, 11 Gray, 124 (contract). See § 185. 134 THE LAW OF DECEIT. CHAPTER XVI. EXCEPTIONS. § 178. Introductory. § 179. Clearness and precision. § 180. Presumption in favor of ruling. §§ 181, 1 82. Specific objection at trial. § 183. General request and ex- ception. § 184. Amendment. § 185. Note. §178. The danger of losing the advantage of an exception, the presumptions in favor of the ruling of a single justice, the necessity of full and precise state- ments to enable the Supreme Judicial Court to con- sider exceptions, and the effective mode of excepting in general to refusals to give instructions asked for, appear by the following selected cases. § 179. A case stated by exceptions did not dis- close the precise character of the representations made by the defendant, although it was stated that the plaintiff testified that he relied upon them. No objection was made that they were expressions of opinion or the like. Hence the court held that the presumption was that they were legally sufficient to support the action. 1 § 180. Exclusion of evidence is presumed to be correct, unless something in the bill of exceptions shows affirmatively that it is not. 1 A judge's ruling at 1 Safford v. Grout, 120 Mass. 20 (tort for false representation). EXCEPTIONS. 135 nisi prius, excluding testimony concerning a sample of goods because it has not been shown to be a fair sample, is not subject to revision upon exception by the Supreme Judicial Court, unless the judge reports all the facts upon which it is founded, and it appears clearly to be wrong. 1 § 181. When evidence is objected to simply as inadmissible, without any specification of a particular ground of incompetency at the trial, and it is for any reason admissible, the objection must fail notwith- standing particular objections made in the argument on exceptions. 2 § 182. An exception to a refusal to give an in- struction requested, when there is nothing in the bill of exceptions to show any facts making such instruc- tion necessary, will not be sustained, when the in- structions given are correct. 3 § 183. A defendant, upon all the evidence, asked the judge to rule that the plaintiff was not entitled to recover in this action, and excepted to the ruling and instructions of the court so far as not in accord- ance with the instruction asked. This gave the de- fendant the right to object to all the instructions given upon this point. 4 § 184. When a plaintiff, in an action of contract, takes an exception before an amendment of his dec- laration, by which he changes his action to one for 1 Brown v. Leach, 107 Mass. 364 (contract). 2 Packer v. Lockman, 115 Mass. 72 (tort for conversion). 3 Wells v. Prince, 15 Gray, 562 (contract and tort for false repre- sentation). 4 Stubbs v. Johnson, 127 Mass. 219 (tort for fraudulent represen- tation). 136 THE LAW OF DECEIT. deceit, whereby the exception becomes immaterial, the exception is no longer open to him. 1 § 185. Note. — See chapter xv., and Exceptions, in Index. As to omitting to request instructions, see the case cited below. 2 1 Cook v. Castner, 9 Cush. 266 (assumpsit and case for deceit). 2 Davis v. Elliott, 15 Gray, 90 (contract). See also § 176. RES AD JUDICATA. 137 CHAPTER XVII. RES ADJUDICATA. § 18G. Election of remedy ; waiver of remedy ; cross-actions. §§ 187, 188. Judgments in contract barring tort, and in case or tort barring contract. § 189. Note. § 186. The importance of the principle of res judicata in preventing excessive litigation, as well as the danger of its concluding one's case, is well shown by facts which may be looked at from the side either of contract or of tort. It has been already stated 1 that, to maintain a defence to an action of contract on the ground of deceit, the same facts must be proved which would be necessar}^ to maintain an action of tort for deceit. After such a defence in an action of contract, a judgment thereon is upon the identical injuria and damnum between the identical persons and parties, in the identical capacity, which would have been essential to and concluded by a judgment in tort if the defendant in contract had brought an action of tort for the deceit instead of waiting to be sued in contract. Hence such a judg- ment in an action of contract renders the question of deceit which was tried in defence res adjudieata, and bars an action of tort for such deceit between the parties to the action of contract. 1 § 9 and cases cited. 138 THE LAW OF DECEIT. "When an action of tort for the deceit has been tried first, the same principle is applicable in bar to an action of contract when the identity just above set forth exists. But, as will be seen by the cases cited in this chapter (§ 187), when such identity does not exist the principle is not applicable. Of course an issue which has not been tried cannot be res acljiidicata. But here arises the inevitable point that the damage suffered in consequence of the deceit may be greater than the amount which may be deducted from the damages claimed in the action of contract, or greater than the whole of such damages. And the question is, whether, after having reduced the damages in an action of contract by proving deceit in defence, and after a trial and a judgment in such action, the de- fendant can, as a plaintiff, maintain an action of tort to recover further damages for the same deceit. This point was argued in the case of Burnett v. Smith, cited below (§ 187), and it was held that the defence by deceit was an election between the two remedies, of defending in contract and suing in tort, and that the right to the cross-action in tort was waived by such election. Hence the tort became res adjudicata by the judgment in contract. Thus the modern 1 privi- lege of proving deceit, — an independent cause of ac- tion with unliquidated damages, — as a defence in an action of contract, has the disadvantage of preventing the party who takes advantage of it from seeking satisfaction in tort after a judgment in contract. 1 See opinion of Dewey, J., in Burnett v. Smith, 4 Gray, 50, 52 (tort for false representation), citing Harrington v. Stratton, 22 Pick. 510 (assumpsit), which cites many cases. RES ADJTJDICATA. 139 If he wishes to avoid election and to avail himself of both remedies in order to get, if possible, more satisfaction for the tort than a defence of deceit in an action of contract can afford him, he should not merely defend thus in contract, but should also bring a cross-action in tort for the deceit, and ask to have both of these actions " tried together and submitted to the same jury, at the same time, with instructions as to damages applicable to both." 1 Such a course in practice may tend, to use the words of Chief Jus- tice Shaw in the case of Cook v. Castner, just cited, " to do justice between the parties " (p. 278). § 187. When, in an action of contract, the de- fendant pleads want of consideration by reason of false representations, and proves the same so that the plaintiff's damages are reduced accordingly, — for in- stance, by recovering only part of the amount of a note sued on, — the judgment bars an action of tort for the false representations. 2 When there is an ex- press warranty in a written contract of sale, and this warranty is false, it seems that case will lie, on the ground that by means of the warranty the buyer is prevented from making any examination. Hence it seems that a judgment in case would bar an action of assumpsit on the same warranty. 3 But when, in an action of case, the onlj- warranty attempted to be shown is a qualified one by parol, competent only as evidence of representation, the failure of the plaintiff to sustain this action would not bar any action founded 1 Cook v. Castner, 9 Cush. 266 (cross-actions of case for deceit and assumpsit). See opinion of Shaw, C. J., p. 277. See § 104. 2 Burnett v. Smith, 4 Gray, 50 (tort for false representation). 3 Salem I. R. Co. v. Adams, 23 Pick. 256 (case for deceit). §§ 10, 69. 140 THE LAW OF DECEIT. on contracts made on good consideration, in regard to the subject-matter of this sale, and not involving a charge of falsity or deceit. 1 § 188. There was an action of tort for false and fraudulent representations, by which the plaintiff had been induced by the defendant to accept from a third party an assignment of a contract with the defendant. The defendant offered to show that the plaintiff had brought an action of contract against the defendant on the same matters, in which the verdict and judg- ment were for defendant ; and the defendant offered the record of that case in evidence, and contended that that judgment was a bar. It was held that nevertheless the issues were essentially different : the judgment was no bar, and was not admissible. 2 § 1S9. Note. — See Res Judicata, in Index. 1 Salem I. R. Co. v. Adams, 23 Pick. 256 (case for deceit). 2 Norton v. Huxley, 13 Gray, 285 (tort for fraudulent represen- tation). MEASURE OF DAMAGES. 141 CHAPTER XVIII. MEASURE OF DAMAGES. §§ 190, 191. The same as the rule in warranty ; price at sale by plaintiff ; price to plaintiff and price got by defendant ; irrele- vancy of ownership. § 192. Market value ; profit. §§ 193, 194. Recoupment ; cross- actions. § 195. Actual and probable dam- age ; election. § 196. Note. § 190. The measure of damages, the relevancy of certain facts concerning it, the character of certain proof, the construction of certain agreements, the items to be reckoned, the adaptation of the common rule to difficult situations, and the precaution against fraud, are shown by the cases cited in this chapter. § 191. In actions for deceit in a sale, the measure of damages is the difference between the actual value of the property sold and the value of such property as that was represented to be by the defendants. This is the same rule which prevails in actions on con- tracts of warranty. 1 Concerning this rule Gra}% J., said : " This is the only rule which will give the pur- chaser adequate damages for not having the thing which the defendant undertook to sell him. To allow to the plaintiff only the difference between the real value of the property and the price which he was in- duced to pay for it would be to make any advantage 1 Stiles v. White, 11 Met. 356 (case for deceit). See Tuttle v. Brown, 4 Gray, 457 (assumpsit) ; Cheney v. Gleason, 125 Mass. 166 (bill in equity for fraudulent representation). 142 THE LAW OF DECEIT. lawfully secured to the innocent purchaser in the original bargain inure to the benefit of the wrong-doer, and in proportion as the original price was low, would afford a protection to the party who had broken, at the expense of the party who was ready to abide by, the terms of the contract." * What the plaintiff sold the property for after the sale complained of is not the rule by which to measure the damages when he has sold it. He is nevertheless entitled to recover for the injury occasioned by the fraud. 2 But in case for deceit in bringing about a sale, evidence of the price paid to the plaintiff by the defendant, and the higher price afterwards obtained by the defendant, is admissible as bearing upon the question of damages. 3 The measure of damages in actions for deceit is not affected b}*- the ownership or proportion of ownership of the defendant in the property alleged to have been fraudulently represented as better than it was. The ownership is not an essential element. The gist of the action is the fraud. 4 § 192. In an action for falsely representing a note to be good and unpaid, the rule of damages is not the market value of the note, but its full amount, when the maker has paid it in full to the defendant. That fact is conclusive evidence that the maker could pay it. If it were otherwise, then if a defendant should sell a note which had been already paid to him, he 1 Morse v. Hutchins, 102 Mass. 439 (tort for deceit). 2 Medbury v. Watson, 6 Met. 246 (case for fraudulent affirmation). See Cornell v. Jackson, 3 Cush. 506 (covenant) ; Brown v. Bigelow, 10 Allen, 242 (contract). 3 Matthews v. Bliss, 22 Pick. 48 (case for fraudulent represen- tation). 4 Springer v. Crowell, 103 Mass. 65 (tort for deceit). MEASURE OF DAMAGES. 143 might keep the balance as a premium on his fraud. 1 When co-owners of a vessel, or partners, are liable for false representations by one in a sale, the damages are not limited to the profit which they or either of them derived from the fraud. 2 § 193. In an action of tort for false representations in an exchange of property, the defendant may re- coup for false representations made by the plaintiff in such exchange. Thus actions of tort come under the rule which is established in actions of contract, allow- ing recoupment for fraud of the plaintiff. 3 § 194. The verdict in a cross-action for deceit should be for the excess, when the damages are found to be in excess over the amount found due in an action of contract in the same transaction, 4 when the two actions are tried together. In the case cited it was objected by the plaintiffs in the action of contract that the defendants, who had brought the cross-action for deceit, could not use the same evidence in the action of contract to support the defence, because it was necessary to elect between the two remedies. But since the actions were tried together, it was held that, although the party claiming damages for the deceit could have but one satisfaction, it was accord- ing to the modern rule, to avoid circuity and multi- plicity of suits, to permit him to give the same evidence in defence to reduce the damages recover- 1 Sibley v. Hulbcrt, 15 Gray, 509 (tort for false representation). 2 White v. Sawyer, 16 Gray, 580 (tort for deceit). 8 Carey v. Guillow, 105 Mass. 18 (tort for fraudulent representa- tion), overruling Everett v. Gray, 1 Mass. 101 (assumpsit). See Taft v. Montague, 14 Mass. 282 (assumpsit) ; Cook v. Castncr, 9 Cusli. 266 (contract and case for deceit). See §§ 90, 186, 194. 4 Cook v. Castner, 9 Cush. 266 (contract and case for deceit). 144 THE LAW OF DECEIT. able against him, as would enable him to recover in an action of tort. This is consistent with the rule of res adjudicata, by which, after the defence of deceit in an action of contract, a judgment in such action bars an action of tort for the same deceit (§§ 186, 187). Actual and Probable Damage. § 195. When a vessel falsely represented to be only eighteen years old is bought and sent to sea by the purchaser in that belief, and the fact that she is twenty-eight years old is not discovered until long after her departure, and then she is condemned in a foreign port, it is sufficiently favorable to the defend- ant to instruct the jury " that if the vessel was at home or elsewhere in the hands of the plaintiff for future use, the rule of damages might be the differ- ence between the values of the different ages ; " but on the facts above stated the limit may be the ac- tual damage, not exceeding the value of the vessel. 1 When, in consequence of the defendant's false repre- sentations, an officer has had to pay a judgment, for property taken by him from another officer, which may have included damages which should be de- ducted from the face of that judgment, but which cannot be precisely ascertained, then a proper rule of damages would be simply to take the amount of all the judgments in favor of the parties for whom he took and applied the property. 2 One who has been induced to pay a premium for a policy of in- 1 Tuckwell v. Lambert, 5 Cush. 23 (case for fraudulent represen- tation). a Jones v. Wolcott, 2 Allen, 247 (tort for false representation). MEASURE OF DAMAGES. 145 surance in a good company, by false and fraudulent representations of material facts by its agent, may elect to rescind the contract and recover in tort for the fraud the amount of the premium so paid. If he had elected to retain his policy, the ordinary rule of damages would have applied, — the difference be- tween what he got and what he would have got if the representations had been true. 1 § 196. Note. — For full damages as on either a count in tort (because property transferred was of no value) or a count in contract (because a sale was rescinded), see Grant v. Mellen, 134 Mass. 335 (tort for fraudulent representation and contract). See Damages, in Index. 1 Hedden v. Griffin, 136 Mass. 229 (tort for fraudulent represen- tation). 10 146 THE LAW OF DECEIT. CHAPTER XIX. MISCELLANEOUS REMEDIES AND DEFENCES. § 197. Fraud the gist; express warranty. § 198. Damage partly indirect or remote. § 199. Attachment and represen- tation of law. § 290. Concealment and Statute of Limitation. §§201,202. Neglect and deceit; executed contract ; in- ducement to agreement. § 203. Deceit not breach of trust or contract ; equity ; third parties deceived. § 20L Statutory remedy not ex- clusive ; deceit and crim- inal statutes. § 205. Partner exception to priv- ilege of recital. § 206. Contract and deceit on Sunday. § 207. Discharge in bankruptcy no bar. § 208. Survival of action ; dam- age to real or personal estate ; abatement by death. §209. Note. § 197. Fraud practised upon the plaintiff by the defendant, to his hurt, is the gist of actions for de- ceit. Hence, when there is an express warranty which is false, and may have prevented a buyer from examining what he bought, it seems that case may lie. 1 The declaration illustrates § 69. § 198. The point that fraud is the gist of the ac- tion is particularly well illustrated by the following cases, in which a part at least of the damage was somewhat indirect. The defendant, by false repre- sentations that certain persons, upon whose judgment and standing the plaintiff relied, had taken policies and paid premiums, and had been acting as directors, induced the plaintiff to pay a premium for a policy 1 Salem I. R. Co. v. Adams, 23 Pick. 256 (case for deceit). MISCELLANEOUS REMEDIES AND DEFENCES. 147 of insurance in a certain company for which the de- fendant was agent. The company was good, but the representations were false and fraudulent; and it was held that the representations were of material facts calculated to deceive the plaintiff and induce him to act, and hence actionable, notwithstanding the fact that the plaintiff cancelled his policy, and by this act suffered his pecuniary loss. He cancelled because of the fraud of the defendant. 1 In tort for deceit the plaintiff offered to prove that she was induced to buy and to use a horse by the representations of the de- fendant that the horse was not afraid of the cars ; and that afterwards, while she was driving the horse, it was frightened by the cars and ran away a long dis- tance with the wagon in which she was, and that she was then consequently thrown out and injured. The judge directed a verdict for the defendant. But it was held that he should have left the case to the jury. 2 (See § 1, Outline I., 6, and § 55.) § 199. A simple representation by an officer that goods are attached, without more, is a representation that facts exist which justify the statement ; and such a representation was held to be actionable, and not to be a representation of law. The court (Holmes, J.) said, as to the question whether an action will lie for a false representation of law, " on that question we express no opinion" (p. 354). 3 § 200. False representations as to the contents of public records which the plaintiff has full opportunity 1 Hedden v. Griffin, 136 Mass. 229 (tort for fraudulent representa- tion). 2 Allen v. Truesdell, 135 Mass. 75 (tort for deceit). 3 Burns v. Lane, 138 Mass. 350 (tort for deceit). See cases cited. 148 THE LAW OF DECEIT. to examine, even if actionable, are not sufficient to prove a subsequent fraudulent concealment of it from the knowledge of the plaintiff, under P. S. c. 197, § 14. 1 (§ 1, Outline I., 1, Conduct. §§ 34, 35.) § 201. Sometimes an action for deceit is the exclu- sive remedy. One who had been led by the false representations of the defendant, who had no legal authority to serve a writ, to intrust a writ to him for service, brought an action of tort for neglect to serve and return it. But it was held that the action did not lie. The plaintiff should have declared in deceit. 2 In cases of contract, " if the contract has been wholly executed on both sides, and the party injured cannot restore the other to his previous condition, the only remedy at law is by action for the deceit, or by re- coupment." 3 § 202. In an action of contract on an agreement by the defendant to sell the plaintiff's goods, even if the plaintiff was induced to enter into the agreement by false representations of the defendant, the deceit is not a ground of recovery in such action on such agreement. 4 (But compare § 10.) § 203. As obviously appears from most of the cases cited in this book, deceit does not necessarily involve 1 Walker v. Soule, 138 Mass. 570 (tort for fraudulent representa- tion). The statute reads as follows: "If a person liable to any of the actions mentioned in this chapter fraudulently conceals the cause of such action from the knowledge of the person entitled to bring the same, the action may be commenced at any time within six years after the person so entitled discovers that he has such cause of action." P. S. c. 197, § 14. 2 Whitney v. Blanchard, 2 Gray, 208 (tort for neglect). 3 Colt, J., in Milliken v. Thorndike, 103 Mass. 382, 385 (contract). * Farley v. Rodocanachi, 100 Mass. 427 (contract). MISCELLANEOUS REMEDIES AND DEFENCES. 149 a breach of trust or contract. Actions for deceit and for that kind of fraud by which others not the plain- tiff are deceived, and the plaintiff is consequently damaged, lie in certain cases which cannot be reached in equity. Take an illustration from the second kind of cases, since they are not discussed in this book (§ 1, beginning). A court of chancery has not ju- risdiction in cases of false representations as to the character or quality of the plaintiff's property, or as to his title thereto, which involve no breach of trust or contract ; as when the defendant has represented falsely that the articles manufactured by the plaintiff are infringements of letters-patent of the defendant, and that the plaintiff has been sued therefor. 1 § 204. An action for deceit is not necessarily ex- cluded by a statutory remedy ; 2 and it might lie against one who could not be reached by an indict- ment under a statute, and thus might practically sup- plement the statute. For instance, an indictment under a statute (Rev. St. c. 31, § 9) prescribing a penalty for a weigher who marks a vessel and gives a false certificate will not lie against an unauthorized person who does so, although he is an official weigher of a neighboring town, and although an action of deceit might lie against him. 3 (Pub. Sts. c. 69, § 21.) § 205. A partner cannot avoid liability for false representations by proving that he stated at the time that his copartner had informed him of what he tells, 1 Boston D. Co. v. Florence M. Co., 114 Mass. 69 (bill in equity for false representation) ; Whitehead v. Kitson, 119 Mass. 484 (bill in equity). Compare Hogan v. Wixted, 138 Mass. 270 (bill in equity). 2 Brown v. Castles, 11 Cush. 348 (case for deceit). 8 Commonwealth v. Woods, 11 Met. 59 (indictment). 150 THE LAW OF DECEIT. the matter being in their joint business. This is a limitation of the rule that one may avoid liability by giving his authority. 1 (§ 2, Outline II.) § 206. An action will not lie for deceit in a con- tract made between the plaintiff and defendant on Sunday. The parties were held to be in pari delicto, under Rev. St. c. 50, § 1, prohibiting " any manner of labor, business, or work, except only works of necessity and charity." See Pub. St. c. 98, § 2. 2 § 207. An action for false representations was held not to be barred by a discharge in bankruptcy, since it came under U. S. Rev. St. § 5117, excepting debts created by fraud of the bankrupt from the operation of the discharge. 3 § 208. In consequence of statutes modifying the common law, questions have arisen concerning the survival of actions for deceit. In an action on the case for falsely recommending a purchaser to whom the plaintiff gave credit, the defendant died, and the plaintiff moved to cite in his administrator. But it was held that the action did not survive, by force of Rev. St. c. 93, § 7 (see Gen. St. c. 127, § 1, and Pub. St. c. 165, § 1), which provided that " actions of trespass and trespass on the case for damage done to real or personal estate " shall survive. Hence the action stood abated by the common law, in conse- quence of the death of the defendant. 4 Selling pois- i Cook v. Castner, 9 Cush. 266 (contract and case for deceit). 2 Robeson v. French, 12 Met. 24 (case for deceit). See Bradley v. Rea, 14 Allen, 20 (contract) ; s. c. 103 Mass. 188. 3 Turner v. Atwood, 124 Mass. 411 (tort for fraudulent repre- sentation). * Read v. Hatch, 19 Pick. 47 (case for fraudulent representation). In Leggate v. Moulton, 115 Mass. 552 (tort for fraudulent representa- MISCELLANEOUS REMEDIES AND DEFENCES. 151 oned grain to the plaintiff's intestate, which, when given to the intestate's horses, caused their death, was also held not to come within that provision (of Rev. St. c. 93, § 7) " for damage done to real or per- sonal estate." The tort was the deceit in the sale, and the right of action for that did not survive the death of the plaintiff's intestate. The use to which the grain was put was the cause of the damage com- plained of by the administratrix. The statute is strictly construed. 1 § 209. Note. — See chapters i., ii., x., xi., xvii., and Action and Defences, in Index. tion), the plaintiff died. The question was on demurrer, under Gen. St. c. 127, § 1. See ante, § 81. 1 Cuttings. Tower, 14 Gray, 183 (tort for deceit). Compare French v. Vining, 102 Mass. 132 (tort for false and negligent conduct). INDEX. SECTIONS ARE REFERRED TO. ACTION. See Damnum ; Inducement and Injuria ; Reliance and Negligence; Parties; Res Adjudicata; Statutes. general essentials and particular constituents of deceit, 1. when an action lies for deceit (Outline I., at the end of § 1), 1. when an action does not lie for deceit (Outline II.), 2. ancient action of deceit, 3. for sale of free negroes as slaves, 28. by principal, although representation was to interested agent, 59. inducement to forbear inquiry, 69 (197). defendant's advantage, (or collusion, 1), unnecessary, (1,) 83. false representations not in deceit, 84. circumstances, evidence, 136-159. miscellaneous remedies and defences, 197(— 209). fraud the gist, 197. false express warranty, 197. indirect damage, 198. inducement to use, 198. representation of attachment, 199. representation of law, 199. concealment, silence, 35 ; Pub. Sts. c. 197, § 14, 200. pretence of authority to serve writ, 201. on agreement, 202 (in assumpsit, 10). deceit not necessarily breach of trust or contract, 203. deceit, remedy when none in equity, 203. not excluded by criminal statutory remedy, 204. indictment (Rev. Sts. c. 31, § 9 ; Pub. St. c. 69, § 21), 204. 154 INDEX. ACTION — continued. partner's liability, exception to (14) stating authority, 205. deceit in contract on Sunday (Rev. Sts. c. 50, § 1 ; Pub. St. c. 98, § 2), 206. not barred by discharge in bankruptcy (U. S. Rev. Sts., § 5117), 207. survival of action, statutes, 208. ALTERNATIVE, representation in, 46. B. BANKRUPTCY, discharge under U. S. Sts. 1867, c. 176, § 33, no bar to tort, 74. discharge under U. S. Rev. Sts. § 5117, no bar to tort, 207. BELIEF. See Opinion, Belief, and Estimate. BOOKS, list of, referring to cases on deceit and subjects relating thereto. See after Table of Cases Cited. C. CHARGE TO THE JURY, as to meaning of materiality, 1. as to time of representation, 43. mode of leaving question to jury, concealment or affirmation, 97. chapter on charge to jury, 160-177. weight of evidence for jury, 161. presumption when defendant rests without evidence, 162. omission to instruct on law, 163. omission to instruct on scienter, after request, 163. misleading distinction as to representation of opinion and fact, 164. construction of recommendation of another's credit, opinion or fact, 164. of one's own standing, opinion or fact, 164. evidence of value, not conclusive, 165. scienter essential issue, 166. requiring excess of proof, 166. INDEX. 155 CHARGE TO THE JURY — continued. inducement, "predominant," ]67- inference from circumstances, 168. as to words, proved but not declared on, 169. equal knowledge, 170. contract of indemnity, representations as to agency, 171, 172. knowledge and means of knowledge, notwithstanding belief, 173. concealment, 174. materiality for jury, 175. omission to request instruction, 176, 185. CONCEALMENT, conduct capable of deceiving, 1. sale of poisonous food, 1 (35). not indefinite suggestion of falsity, 34. when silence is deceit, 35. not mere non-disclosure by tenant in common, 62. difference between knowledge and opinion in the scienter, 97. sale of business without stating revocation of privileges, 98. secret measurement by purchaser, 124. secret use of broker's information, 174. of cause of action, limitation, statute (Pub. Sts. c. 197, § 14), 200. CONDUCT, of defendant (Outline I., 1), 1 ; (Outline II., 1, A, B, C ; 2, A, B, C), 2. of plaintiff (Outline I., 3, 4), 1 ; (Outline II., 2, C), 2. CONTRACT. See Cross-action; Evidence {Contract). chapter on deceit in contract. — Recoupment aud rescission, 9-19. surety not an exception, 15. on plea of nil debet to a judgment, fraud not a defence, 18. offer to rescind, 27. representations after contract but before performance, 44. evidence of sale to measure damage, 102. concealment, 124. evidence of false representations to others and intention not to pay, 154. election, actual and probable damage, 195. 156 INDEX. CONTRACT — continued. election to rescind and recover in tort, damages, 198. when executed, remedy tort or recoupment, 201. action on agreement only, 202. contract and deceit on Sunday, 206. CROSS-ACTION. See Contract. proportion, damages, 90. •waiver of cross-action, 103. tort and contract, 186. excess of damage, 191. CUMULATIVE REMEDIES, deceit and statute on attachment of mortgaged goods, 201. deceit and criminal statutes, 201. D. DAMAGES AND MEASURE OF DAMAGES. See Damnum ; Evidence {Damages). cross-action, proportion, 90. rule to prevent multiplicity of suits, 132. evidence of, not admissible when no injuria, 1, 133. when tort and contract tried together, 186. measure of, 190-196. the same rule as in warranty, 191. subsequent price not, 191. ownership, proportion irrelevant, 191. when price admissible as evidence of, 191. not market value, 192. not profit, 192. recoupment as in contract, 193. proportion when tort and contract in same matter, 194. actual and probable damage, 195. full damages, 196. DAMNUM. See Damages. the plaintiff s hurt, being the damnum (Outline I., 5), 1. chapter on, 51-56. damage must have accrued, 51. remote damage, 55, 60. INDEX. 157 DECEIT. See Action ; Outlines. explained, 1, 2. law of Pennsylvania, 98, 120. and duress, 99. miscellaneous remedies and defences, 197-209. DEFENCES, when an action for deceit does not lie (Outline II.), 2. chapter on deceit in contract, recoupment and rescission, 9-19. chapter on miscellaneous remedies and defences, 197-209. DURESS, threat, 99. E. ELECTION, of remedy, 186, 194. EQUITY, false representations in, not considered here, 1 (beginning). petition in chancery, Lord Eldon's reluctant recognition of Pasley v. Ereeman, 5. assumpsit at law, but equitable, 10, 11. presumption against defendant who rests without offering evi- dence, 162. measure of damages, 191. when no relief in, deceit a remedy, 203. reference to opinion, in Hogan v. Wixted, discussing false rep- resentations, note to 203. ESTIMATE. See Opinion, Belief, and Estimate. EVIDENCE. See Pkoof. fraud not presumed, 95, 96. preponderance of, 95. burden of proof, 96. scienter, 97. variance, 98. chapter on evidence and questions arising by objections to evi- dence, 101-159. point not taken at trial, 112, 135. Pleadings affecting Evidence, 101-108. count in tort and contract, representation in defence, 102. 158 INDEX. EVIDENCE — continued. under general denial, special defence, 103. general course of dealing, 104. whole conversation, 105. representation by minor, 106. under general answer, special evidence, 107. usage, 108. Examination of Witness, 109, 110. question as to inducement, 109. question as to reliance, 109. cross-examination on book of account, 110. Of Knowledge, 111-114. of knowledge, business relations, 111. of professing knowledge of business, 112. of ignorance not admissible, when representation as of own knowledge, 112. of knowledge, although statement relied on, 112. Scienter, conversation to show ignorance, 113. conversation in absence of plaintiff, 113. mortgage to show knowledge, 1 14. Representation of Eact, 115, 116. self-commendation, 115. price paid by third party, 116. express testimony to reliance and inducement, 117. Inducement, 117-120. written receipt as inducement, 118. feeble understanding, undue influence, 119. leading question on inducement, 120. circumstances showing inducement, 120. Contract, 121-124. oral testimony of representations before written contract, 121. oral, repugnant to deed, 122, 123. concealment, 124. Expert Testimony, 125-127. expert testimony as to accident or design, 125. expert testimony in rebuttal, 126. expert testimony of accountant to results, 127. INDEX. 159 EVIDENCE — continued. Principal and Agent, 12S-131. representations of general agent, 128. recoupment, declaration in another action as admission, 129. agent of corporation, 130. agent of plaintiff and defendant, 131. Damages, 132-135. circuity and multiplicity of suits, modern rule to prevent, 132. evidence of damage not admissible when no injuria, 133. record as proof of damages when officer was deceived, 134. evidence of sample to affect damages, points not taken at trial, 135. Circumstances, 136-159. discretion of court as to evidence to rebut, immaterial, 136. representation of third party's agreement to show fraud, 137. what a party "supposed," 138. letter alleging false representations, offer of settlement, 139. similar articles, evidence of, 140. immediate sale to show fraud, 141. subsequent transactions showing intent, 142. adjudication in bankruptcy, affidavits, vouchers, proofs of debts, 143. indorsement by defendant to show knowledge, 144. value of collateral security, 145. sudden impulses, as to intent, 146. arrangement of goods, as to intent, plaintiff absent, 147- actual value, as to fraud, 148. price sold for, as to fraud, 148. deed admitted, without attesting witness, as part of representa- tion, 149. words not declared on, 150. liabilities, as to fraud, 151. proved by assignee, 151. amount realized to show value, 151. subsequent declaration, 151. res inter alios, 152, 154. bills of lading, invoices, inseparable parts of transaction, 153. showing knowledge, 153. price showing fraud, 153. 160 INDEX. EVIDENCE — continued. evidence prejudicing jury, notwithstanding verdict, 154. books of bank concerning insolvency of depositor, 155. bank account showing knowledge of insolvency, 156. of judgment and execution by fraud, 157. general purpose of fraud, 158. price at subsequent sale as to fraud, 165. when price admissible to measure damages, 191. EXCEPTIONS, bill of exceptions failing to show point, 112. point not taken at trial, 112, 135. none as to evidence to rebut immaterial evidence, 136. judge's omission to instruct jury on law, 163. omission to request instruction, 176, 185. chapter on exceptions, 178(-185). clearness and precision, 179. presumption in favor of ruling, 179. all facts on which founded to be reported, 180. when admissible on any ground after exception, 181. specific objection needed, 181, 182. general request and exception, 183. exception immaterial after amendment, 184. F. FACT. See Materiality. material as represented, 1. must be specific, 115. price by third party, 116. FIIAUD. See Sellers' Statements and Privileged Fraud gist of deceit, 1(22, 198). no benefit necessary to deceiver, 1 (22). no collusion necessary, 1. privileged fraud in seller's statements, 20 (-29). limit to privileged fraud, 28. discussion of scienter, 37- evidence, 104, 113, 114, 116, 119, 122, 124, 141, 146, 154 ; 158. INDEX. 161 FRAUDS, STATUTE OF. See Statutes. chapter on modern changes in remedies, and their relation to the Statute of Frauds, 3 (-8). the English statute, 5. its guaranty clause, 5. Lord Tenterden's act, 6. acts of Massachusetts, copying Lord Tenterden's act, 6. cases when writing is unnecessary, 7 (164). cases when writing is necessary, 8. I. INDICTMENT (Rev. Sts. c. 31, § 9 ; Pub. St. c. 69, § 21), 204. INDUCEMENT AND INJURIA, the defendant's deceit and inducement of the plaintiff, being the injuria (Outline I., 3), 1. connection between injuria and damnum (Outline I., 6), 1. chapter on, 48-49. materiality necessary, 48. to forbear inquiry, to be specifically alleged, 48. partial inducement, 48. need not be sole, 48. need not be " predominant," 48 (167). uncertainty whether inducement, 55. evidence of written receipt, 118. feeble understanding evidence of undue influence, 119. leading question on, 120. circumstances showing, 120. inducement " predominant," 167. inducement "to use" 198. INFANT, indorsement by, 35. INJURIA. See Inducement and Injuria. INSOLVENCY. See Bankruptcy ; Evidence {Circumstances). J. JURY. See Charge to the Jurt ; Practice. 11 162 INDEX. K. KNOWLEDGE. See Scienter ; Evidence {Of Knowledge ; Sci- enter} . LIMITATION, STATUTE OP, concealment of cause of action (Pub. Sts. c. 197, § 14), 200. M. MATERIALITY. See Inducement and Injuria ; Evidence (Circumstances). of fact as represented, 1. standard of, 1. necessary and sufficient, although not sole or " predominant," 48. materiality for jury, 175. inducement to drive horse, 198» MISTRIAL, 98. N. NEGLIGENCE, reliance without negligence (Outline I., 4), 1. reliance with negligence (Outline II., 2, C), 2. fact for jury, 50. chapter on reliance and negligence, 50, 53. jury to decide on extent of inquiry necessary, 51. neglect to notify of defect, 52. NEW YORK, law of, note to, 75. 0. OPINION, BELIEP, AND ESTIMATE, jury's mere opinion of what defendant's opinion should have been, not a test of deceit. See page opposite titlepage- opinion in good faith (Outline II., 1, A, B, C), 2. INDEX. 163 OPINION, BELIEF, AND ESTIMATE — continued. opinion in bad faith (Outline II., 2, A), 2. seller's valuation, 23, 32. prudent discrimination required of plaiutiifs, 36. promissory representations, 37. qualified representation, 38. unqualified assertion about title, 39. about property left by another, 40. mistake by selectman as to authority, 40. future profits, 41. knowledge is affected by opinion, 97. misleading distinction as to representation of fact and opinion, 164. OUTLINES, showing when tort for deceit lies, (end of 1), and does not lie, 2. P. PARTIES, chapter on parties, 64-68. interests several not joint, 65. settlement with one, 65. abatement, pleading, 65. joint owners, 66. partners, 66. joint tort-feasors, 67. PATENT, representation about, 31. PENNSYLVANIA, law of, 98, 120. PLEADING. See under Evidence {Pleadings affecting Evidence). either fraudulenter or sciens sufficient allegation. See page opposite titlepage, and 37, 71. on plea of nil debet to judgment, fraud not to be proved, 18. inducement to forbear inquiry, 23 (69, 197). when scienter need not be expressly alleged or proved, 32. inducement to forbear inquiry, 48. abatement, 65. chapter on pleading, 69-S4. 164 INDEX. PLEADING — continued. declaration, 69-72. amendment, 73. answer, 74-SO. law of New York, note to, 75. demurrer, 81. variance, 82, 83. false representations not in deceit, 84. forms for pleading, 84. scienter, 97. variance, 98. alleged conspiracy need not be proved, 98. answer, general, specifications, 107- amendment rendering exception immaterial, 184. abatement by deatb, 208. PRACTICE. See Charge ; Cross-Action ; Defences ; Excep- tions ; Statutes. chapter on practice, 85-93. liberal tendency, 85. surprise at ruling not at evidence, 86. judgment on nonsuit before verdict no bar, 86. nonsuit taken off and amendment allowed, 86. trying part of count, 87. counts in tort and contract, indiscriminate evidence before election of either, 88. weight of evidence for jury, 89. cross-actions, proportion in damages, 90. discretion of judge in refusing to withdraw case from jury, 91. directing verdict, 91. waiver of motion, 91. special questions to jury, 92. mistrial, 98. verdict against evidence, 99. statement by counsel as to defence, 163. waiver, of defence, statement by counsel as to, 163. PRESUMPTIONS, fraud not presumed, 95, 96. in favor of ruling at nisi prius, 112, 179, 180. when defendant rests without evidence, 162. INDEX. 165 PRINCIPAL AND AGENT. See Evidence {Principal and Agent). chapter on principal and agent, 57-63. liability of principal for agent's representation, 58. agent's interest, 59. deceiving agent, causing disobedience, 60. partner's common liability, 61. tenancy in common not fiduciary, 62. representation against instructions, 128. admission by attorney in pleading, 129. agent of corporation, 130. agent of plaintiff and defendant, 131. contract of indemnity, 171, 172. partner exception to privilege of recital, 205. PROOF. See Evidence ; Charge to the Jury. chapter on proof, 94-100. preponderance of evidence, 95. fraud not presumed, 95, 96. burden of proof, 96. cause for belief not knowledge, 97. scienter, 97- words proved not declared on, 98. alleged conspiracy need not be proved, 98. law of Pennsylvania, 98. concealment, effect of, 9S. variance, 98. scienter, excessive proof of intent, 166. R. RECOUPMENT. See Contract ; Res Adjudicata. chapter on deceit in contract, rescission and recoupment, 9-19. contract executed, 201. RELIANCE AND NEGLIGENCE. See Negligence. chapter on, 50-53. the plaintiff's reliance (Outline I., 4), 1. REMEDIES AND DEFENCES. See Acticn. outlines showing when an action for deceit does and does not lie, 1, 2. chapter on miscellaneous remedies and defences, 197-209. 166 INDEX. REPRESENTATION AND MODES OF REPRESENTA- TION. See Inducement and Injuria. outlines showing when an action of tort for deceit will and will not lie, 1, 2. chapter on representations and modes of representation, 30-47. knowledge and means of, 30. peculiar knowledge, 31. of attachment, 31. pretended mortgage, 31. ignorant he, 32. both parties deceived, 33. silence, 35. scienter, discussion of, 37. absolute statement of opinion, 39. time of representation, 42-45. charge, 43. of responsibility of another, 45. alternative, 46. falsity and duress, 99. misleading distinction, 164. equal knowledge, 170. knowledge and means of knowledge, notwithstanding belief, 173. concealment, 174. materiality for jury, 175. representation of law, 199. of attachment, 199. RES ADJUDICATA, 103. chapter on res adjudicata, 186-189. election of remedy, 186. waiver of remedy, 186. cross-action and damages, 186. judgment in contract barring tort, 187. judgment in case barring contract, 187. judgment on contract no bar to tort for deceit concerning as- signment, 188. RESCISSION. See Contract. RETURN OE OFFICER, action on, evidence of judgment and execution by fraud, 157- INDEX. 1G7 S. SCIENTER. See Pleading. either fraudulenter or sciens sufficient allegation. See page opposite titlepage, and 37, 71. knowledge and scienter, 1, 2, 30(-33). in sale of free negroes as slaves, 28. relative knowledge, 30. when implied, 32, 97. discussion of, 37. principal and agent, 58. not mere cause to believe, 97. evidence of knowledge, 111-114. evidence of circumstances of deceit, 136-159. essential issue, 166. excessive proof of intent, 166. inference of fraud from circumstances, 168. knowledge and means of knowledge, notwithstanding belief to contrary, 173. SELLERS' STATEMENTS AND PRIVILEGED FRAUD, explained, 1, 2. recoupment prevented, 13. buyer's negligence, 17. chapter on seller's statements and privileged fraud, 20(-29). protection against by warranty, 20. difference from third party's, 21, 22. opinion, 23, 32. price, 21. barter, 25. ordinary vigilance, 26. equal knowledge, 27, 33. seller's liability, 28. seller's liability for statement of fact, 28, 32. extraordinary vigilance, 33. promissory representations, opinion, 37. fraudulent representations of future profit, 41. recommending one's self, 115. 168 INDEX. SLAVERY, scienter in sale of free negroes as slaves, 28. STATUTES, chapter on modern changes in remedies and their relation to the Statute of Frauds, 3-8. actions of tort including case in Massachusetts Pub. Sts. c. 167, §1,4. English Statute of Frauds, 29 Car. II. c. 3, 5. guaranty clause in Statute of Frauds, § 1, 5 . Lord Tenterden's act, 9 Geo. IV. c. 14, § 6, copied in Mass. Sts. 1834, c. 1S2, § 5, and Mass. Rev. Sts. c. 74, § 3, and Mass. Gen. Sts. c. 105, § 4, and Mass. Pub. Sts. c. 78, § 4, 6. Mass. Gen. Sts. c. 105, § 4 (Pub. Sts. c. 78, § 4), when not applicable, writing unnecessary, 7, 104. Mass. Rev. Sts. c. 74, § 3, when applicable, writing necessary, 8. deceit as to mortgage, remedy under Mass. Rev. Sts. c. 90, §§ 79, 80, cumulative (Pub. Sts. c. 161, §§ 75, 76), 31. joining counts in tort and contract under Pub. Sts. c. 167, § 2 (Gen. Sts. c. 129, § 2), 72, 74. discharge in bankruptcy not a bar in tort under U. S. Sts. 1S67, c. 176, § 33 (nor under U. S. Rev. Sts. § 5117), 74 (207). forms in pleading under Pub. Sts. c. 167, § 94, 84. answer under Gen. Sts. c. 129, § 20 (Pub. Sts. c. 167, § 20), specifications to be asked under Mass. Gen. Sts. c. 129, § 58 (Pub. Sts. c 167, § Gl), 107. fraudulent concealment of cause of action, statute (Mass. Pub. Sts. c. 197, § 14) of limitation concerning, 200. criminal statute (Mass. Rev. Sts. c. 31, § 9) against false weigher (Pub. Sts. c. 69, § 21), 204. deceit in contract on Sunday against, Mass. Rev. Sts. c. 50, § 1 (Pub. Sts. c 98, § 2), 206. discharge in bankruptcy not a bar under U. S. Rev. Sts. § 5117, 207. survival of actions under Mass. Rev. Sts. c. 93, § 7 (Gen. Sts. c. 127, § 1; Pub. Sts. c 165, § 1), for damage done to real or personal estate, 208. SUNDAY. See Time. INDEX. 169 T. TIME, charge concerning, 16. when representation is applicable, 43, 44, 45. declaration leaving time uncertain, 70. deceit in contract on Sunday, 206. TRIAL. See Charge to the Jury ; Practice. mistrial, 98. USAGE, neglect of, 52. U. V. VARIANCE. See Pleading ; Evidence. W. WAIVER, of right to cross-action, 103, 186. statement by counsel, 163. WARRANTY. See Action. implied warranty, 19. in insurance policy, 19. express inducement to forbear examination, 197. WITNESS. See Evidence (Expert Testimony'). examination, cross-examination, 109, 110. leading question on inducement, 120. examination in rebuttal, 126. 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