Page images

The vendee must object to the quality within a vendee reasonable time, if he intends to set up, as a de- within°ieafence to the action, that the commodity does not time, accord with the sample exhibited, or with the representation made by the vendor; therefore, where the defendant acquiesced for a month, and put up the goods to be resold, he was compelled to complete the contract (w). So, where, after discovering the fraud, the vendee continues to deal with the property as his own, he cannot afterwards recover back the money (.r); not even, it seems, if he subsequently discover some additional incident in the fraud(y). The giving a bill of ex* change, or promissory note, does not preclude the vendee from giving evidence of actual fraud in the sale, in an action by the vendor on the security (z); though the defendant is estopped from objecting on any other ground to the reasonableness of the demand, as, that the goods were damage(Wn quality, or that the price was exorbitant (a).

(u) Parker v. Palmer, 4 B. & A. 387; Milner v. Tucker, 1 C. & P. 15; Percival v. Blake, 2 C. & P. 514. And see below, Book II. Part 2, Chap. iii.

(x) Campbell v. Fleming, 1 Ad. & Ell. 40; S. C. 3 Nev. & Man. 834.

(y) S. C

(z) Sohmon\. Turner, 1 Stark. N. P. C. 51; Fleming v. Simpson, 1 Campb. 40, n.; Lewis v. Cosgrave, 2 Taunt. 2.

(a) Morgan v. Richardson, 1 Campb. 40, n., (cited 7 East, 482); Knox v. Whalley, 1 Esp. 159; Obbard v. Betham, 1 M. & Malk. 483; Tye v. Gwynne, 2 Campb. 346;

Sut,prctsio The suppressio veri will vitiate a contract of sale, ""'" as much as the allegatio falsi(b). If the seller

fraudulently conceal what he ought to communicate, he is equally guilty of fraud as if he expressly asserted what was not true. There is no distinction in effect between an active and a passive communication (c). Thus, where in the purchase of a picture represented to be a Claude, the vendee was known to entertain the erroneous opinion, that the picture had been in the cabinet of an individual who had the reputation of a connoisseur, it was held by Lord Ellenborough, C. J., that the plaintiff could not recover, even if the painting were proved to be a genuine Claude (d). Trickery If the vendor endeavours by a trick to induce

trivanc"! the purchaser to enter into a foolish contract, even where the sale is not absolutely avoided, the plaintiff will not be allowed to recover more than a reasonable value (e\ Therefore, where the defendant had been induced to offer, in payment for a horse, a barleycorn for the first nail in the shoe, doubling the price in progression for every other nail, the judge directed the jury to give the value of the horse in damages (/). So, where the

(6) See 1 East, 318.

(c) See Early v. Garrett, 9 B. & C. 932, per Bayley, J.; Carter v. Boehm, 3 Burr. 1905; S. C. 1 Bl. Rep. 593.

(d) Hill v. Gray, 1 Stark. N. P. C. 434. And see Stevens v. Adamson, 2 Stark. N. P. C. 422; Granger v. Worms, 4 Campb. 83.

(e) See 1 Wils. 295, per Lord Hardwicke, C. J.

(f) James v. Morgan, 1 Lev. 111. See Thornbororv v. Whit

vendor takes advantage of the needy and embarrassed circumstances of an expectant heir, and sells to him, on credit, at extravagant prices, goods, which he knows will be immediately resold at a loss in order to raise money, the defendant will be relieved in equity (g). So, where the vendor takes imbecility advantage of the imbecility (A), or of the in- of pur-TM7 ebriety(i), of the purchaser, to induce him to enter ciaser" into a disadvantageous bargain, the contract will not be enforced. It seems to have been formerly held, even in equity, that a party entering into a contract when in a state of intoxication, was not entitled to relief, unless some fraud or contrivance had been practised by the other party (k); but probably the contract would now be held void, if the defendant could show that he was so drunk at the time that he did not know what he was doing, although the drunkenness were entirely his own act (7).

acre, 2 Ld. Rayra. 1164; Boldero v. Andrews, (cited Bull. N. P. 156); see 1 Vent. 65, 267.

(g) King v. Hamlet, 4 Sim. 223. See Bosanquet v. Dashwood, Ca. temp. Talbot, 38.

(A) Ante, p. 42; Levy v. Baker, 1 M. & Malk. 106, n.

(i) Fenton v. Holloway, 1 Stark. N. P. C. 126; Pitt v. Smith, 3 Campb. 33; Cole v. Robins, Bull. N. P. 172; Yates v. Boon, ibid.; Butler v. Mulvihill, 1 Bligh, 137. See Gregory v. Frazer, 3 Campb. 454.

(k) Johnson v. Medlicott, 3 P. Wms. 130, n.; Cooke v. Clayworth, 18 Ves. Jun. 12.

(0 Cole v. Robins, referred to in Bull. N. P. 172; Fonbl. Eq. 67; Chit. Contracts, p. 113 (2dEd.); Cory v. Cory, 1 Vez. 19.

Fraud against


Goods obtained on false pretences.

2. Fraud against the Vendor.

If the purchaser be guilty of fraud, the vendor will not be compelled to complete the contract. Thus, where the plaintiff, at an auction, addressed the company present, and stated that he had been ill used by the owner, and had a claim upon him, whereby they were deterred from bidding, and the article was knocked down at one-fourth of the prime cost, it was held that the action could not be supported (m). However, a purchaser is not bound to disclose the highest price which he is willing to give for goods offered to sale, and it is not every false statement made by him that will be sufficient to avoid the sale, or to render him liable to an action of deceit (?«).

Where a party procures the goods to be delivered to him, under false pretences, the transfer does not change the property (o); as, where at the time

(hi) Fuller v. Abrahams, 3 B. & B. 116. See Levi v. Levi, 6 C. & P. 239.

(») Vernon v. Keyes, 4 Taunt. 488; (in the Exchequer Chamber, affirming judgment of K. B., 12 East, 632).

(o) Noble v. Adams, 7 Taunt. 59; Anon., 6 Mod. 114. See Gladstone v. Hadtoen, 1 M. & S. 517; Taylor v. Plumer, 3 M. & S. 562; Rex v. Jackson, 3 Campb. 370; Rex v. Lara, 6 T. R. 565. [It was held in one case that goods, obtained by a trader through a conspiracy to defraud the vendor, passed to the assignees on the bankruptcy of the former; (Milward v. Forbes, 4 Esp. 171.) But this is contrary to the principle that, where there is fraud, the property is not changed; and the case appears to be overruled by Gladstone v. Hadwen. And see Harrison v. Walker, Peake, 111; Abbotts v. Bury, 2 B. & B. 369; Kilby v. Wilson, 1 Ry. &M. 178.]

of obtaining the goods, the vendee had a preconceived design not to pay for them, having given, by way of fictitious payment, a check upon his bankers, which was not honoured, because he had overdrawn his account many months (p). So it is, where, at the time of giving the check, the purchaser had no reasonable ground to expect that it would be paid(y). But it was held, that the vendor could not maintain an action for goods sold and delivered, which were to be paid for by a bill, if the agreement was, that the vendee was not to be liable in the event of the bill not being paid(r). And assumpsit cannot be maintained before the time of credit has expired, although there be a clear case of fraud; as, where the vendee gave bills in payment, which he had obviously no intention of discharging, having immediately sold the goods off at reduced prices (s). The vendor ought, under such circumstances, to treat the con

(p) Bristol (Earl) v. Wilsmore, 1 B. & C. 614. Whether the vendee had such a preconceived design is a question of fact which ought to be left to the jury; per Abbott, C. J., ibid. 521. See Kilby v. Wilson, 1 Ry. & Moo. 178; Irving v. Motley, 5 M. & Payne, 380; S. C. 7 Bingh. 543.

(q) Hawse v. Crowe, 1 Ry. & M. 414.

(r) Read v. Hutchinson, 3 Campb. 352, cor. Lord Ellenborough, C. J. [But his lordship observed, that, if the defendant knew at the time that the bill was worth nothing, the vendor might have maintained case for deceit, or trover.]

(s) Fergusson v. Carrington, 9 B. & C. 59; Strutt v. Smith, 1 Cr. M. & Rose. 312; Be Symons v. Minchwich, 1 Esp. 430.— Post.

« PreviousContinue »