When maintain able. Although action on warranty might not lie. for selling corrupt wines or victuals (g); or, for delivering ashes instead of merchantable commodities (h); or, for selling in short and defective measures (i). So, deceit will lie, if a merchant sells cloth that he knows to be badly fulled (k); or, if a clothier sells bad cloths, upon which he puts the mark of another who makes good cloths(). And if the vendor is guilty of deceit, the plaintiff is not prevented from maintaining the action, although the agreement were, that, if he objected to the chattel, it should be exchanged for another (m). Again, where the vendor has made false representations, although there may have been a written memorandum of the agreement, in which such representations are not embodied, the purchaser (g) Rol. Abr. 95; Bac. Abr. Fraud, A.; Vin. Abr. Actions (P. b) 1. (h) Beningsage v. Ralphson, 2 Show. 250. (i) Miles v. Dell, 3 Stark. N. P. C. 23, 25. The plaintiff, however, was nonsuited, because, as the declaration was framed, it only appeared, that the seller had not delivered the whole quantity agreed upon, not that he had fraudulently delivered a less quantity as and for the stipulated quantity. (k) Com. Dig. Action on the Case for a Deceipt, A. Abr. Actions (P. b) 1, 2, 3. 83 Vin. (1) Com. Dig. Action, &c. A. 9; Cro. Jac. 471, and Poph. 144, per Doderidge, J. (m) Wallace v. Jarman, 2 Stark. N. P. C. 162. Lord Ellenborough, C. J. said, that such agreement was collateral: and, if the purchaser was tied down thereby from bringing the action, he might have no remedy; for the vendor might give a worthless article on each successive exchange. And see Hamer v. Alexander, 2 N. R. 241. P maintain may support an action of deceit (n). Thus, where When the seller produces a sample at the time of the sale, able. and falsely represents that the bulk of the commodity is of similar quality, but the sale-note does not refer to the sample, the purchaser may recover for the deceitful representation (o); although the evidence would not have been admissible in an action on the warranty. So, where an instrument describes a ship as copper-bolted, but a bill of sale subsequently executed omits the description, though some defect in the first instrument should render it unavailable in an action on the contract, the vendee may use it to show fraud on the part of the seller (p). So, where goods are expressly sold "with all faults," the vendor will nevertheless be liable, if he has fraudulently misrepresented the condition at the time, or if he knew of latent defects in the chattel and used artifice to disguise them from the purchaser (q). But it is not every false representation on the When not. part of the seller that will subject him to an action of deceit. "If it appears to be a representation 23. (n) Dobell v. Stevens, 3 B. & C. 623; S. C. 5 D. & R. 490. (p) See the judgment of Abbott, C. J., Kain v. Old, 2 B. & C. 634, 5. Per Gibbs, C. J., 4 Taunt. 786. (q) Fletcher v. Bowsher, 2 Stark. N. P. C. 561; Schneider v. Heath, 3 Campb. 506. See above, pp. 130, 131. When maintain ble. Not, if the purchaser ledge. in a matter merely gratis dictum by the defendant, in respect of which he was under no legal pledge or obligation to the plaintiff for the precise accuracy and correctness of his statement, and upon which therefore it was the plaintiff's own indiscre tion to rely; for the consequences of such reliance no action can be maintained" (r). Therefore, "if a man having a term for years offer to sell it to another, and says that a stranger would give him 201. for it; by means of which assertion the other buys it, when in truth he was never offered 201. for the term; though he be deceived in the value, yet in truth no action on the case lies "(s). Again, if the plaintiff was aware of the falsity of had know the representation, he cannot recover (t); as, where a man sells corrupt wine, and the vendee or his servant tastes and approves of it (u); for the gist of the action is that the plaintiff was deceived, and this cannot be where he had knowledge of the fact. Further, if he had the full means of detecting the fraud and ascertaining the truth, and neglected to inform himself of it, when he might (r) See per Lord Ellenborough, C. J., Vernon v. Keys, 12 East, 638 (in which case the action was by the seller against the buyer for deceit); S. C. affirmed in error, 4 Taunt. 488. (s) Rol. Abr. 801, pl. 16, adjudged M. 40, and 41 Eliz., B. R. See 1 Sid. 146; Bayley v. Merrel, Cro. Jac. 386; S. C. 3 Bulstr. 94; Harvey v. Young, Yelv. 20. (t) Cowen v. Simpson, 1 Esp. 290; Scott v. Lara, Peake, (u) Com. Dig. Action on the case for a Deceipt, E. 4. maintain easily have done so, an action of deceit cannot be When supported (r.) Therefore, deceit does not lie if able. the vendor affirm falsely of the value; as, if he affirm that jewels are of so much value, when they are not (y). So, where a horse is sold, as "sound wind and limb," when it is apparent that he has but one eye(), or where a house is represented to be perfect, when it wants the roof (a). So, where the purchaser has full opportunity to inspect the chattel sold, and neglects to do so (b). And where the purchaser has omitted to use certain precautions, although the omission may not absolutely amount to such a laches as to bar his right, it may be a question for the jury whether there is not sufficient ground to presume that no deception has in fact taken place (c). 2. Proof of the Scienter. Without knowledge on the part of the vendor there can be no fraud; the scienter, therefore, is the gist of the action, and must be averred and proved. (x) 2 Stark. Ev. 268 (2nd Ed.). (y) Com. Dig. Action on the case for a Deceipt, E. 4. Secus, where the value of the chattel is peculiarly within the vendor's knowledge; as, where he affirms the rent to be worth so much; see Leakins v. Clissell, 1 Sid. 146; S. C. nom. Ekins v. Tresham, 1 Lev. 102. (z) 3 Bl. Comm. 166.—Infra. (a) See Bayley v. Merrell, Cro. Jac. 387. Scienter. Qualified Thus, in an old case, where the plaintiff brought an action against the defendant for selling him a stone which he affirmed was a Bezoar-stone, and sold as such, judgment was arrested because the declaration did not allege that the defendant knew it was not a Bezoar-stone (d). So, where the action was brought against the vendor for falsely asserting that certain barilla, bargained to be sold, was of such quality that 51 cwt. had produced ten tons of soap, it was held that this was not positive proof of the scienter (e). So, in an action against the vendor for falsely selling goods to which he had not good title, it must appear that the defendant knew he had no title (f). If the defendant has qualified his representation tation. by stating that he makes it on the authority of representa another (g), or to the best of his own knowledge and belief only (h), he will not be liable for the incorrectness of the representation, if it actually was made according to his honest belief. Yet, if he knows his representation to be untrue, although morally he may have been guilty of no fraud, he (d) 1 Sid. 146; Dowding v. Mortimer, 2 East, 450, n. ; 9 B. & C. 932. (e) Horncastle v. Moat, 1 C. & P. 166. (f) Medina v. Stoughton, 1 Salk. 211; S. C. 1 Ld. Raym. 1118; Dale's case, Cro. Eliz. 44. (g) Dunlop v. Waugh, Peake, 123; Jeudwine v. Slade, 2 Esp. 572. (h) Haycraft v. Creasy, 2 East, 92; Ashlin v. White, Holt, N. P. C. 389, per Gibbs, C. J. See 3 B. & Ad. 124. |