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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 hehas 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

(») Dobell v. Stevens, 3 B. & C. 623; S. C. 5 D. & R. 400.

(o) Per Lord Ellenborough, C. J., Meyer v. Everth, 4 Campb. 33.

(p) See the judgment of Abbott, C. J., Kain v. Old, % 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 had knowledge.

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 indiscretion to rely; for the consequences of such reliance no action can be maintained "(V). Therefore, "if a man having a term for years offer to sell it to another, and says that a stranger would give him 20/. for it; by means of which assertion the other buys it, when in truth he was never offered 20/. 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 the representation, he cannot recover (/) ; as, where a man sells corrupt wine, and the vendee or his servant tastes and approves ofit(w); 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, C3S (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,

(») Com. Dig. Action on the case for a Deceipt, E. 4.

easily have done so, an action of deceit cannot be when

.« maintain

supported(.r.) Therefore, deceit does not he u 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 (z), 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(Z»). 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.

(a) 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. Clmell, 1 Sid. 146; S. C. nom. Ekins v. Tresham, 1 Lev. 102.

(z) 3 Bl. Coram. 166.—Infra.

(a) See Bayley v. Merrell, Cro. Jac. 387.

(6) Pickering v. Dowson, 4 Taunt. 779.

(c) Bowring v. Stevens, 2 C. & P. 337, 341.

Scienter. 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 (/).

Qualified If the defendant has qualified his representation

rcpresenta- . . ,

ution. by stating that he makes it on the authority ot another(g), or to the best of his own knowledge and belief only (A), 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. 14G ; Dowding v. Mortimer, 2 East, 450, n.; 9 B.& C. 932.

(e) Horncastle v. Moat, 1 C. & P. 166.

(J) Medina v. Stoughton, 1 Salk. 211 ; S. C. 1 Ld. Raym. 1118; Dale's case, Cro. Eliz. 44.

(g) Dunlop v. Waugh, Peake, 123 ; Jeudwinev. Slack; 2 Esp. 572.

(A) Haycraft v. Creasy, 2 East, 92; Ashlin v. White, Holt, N. P. C. 389, per Gibbs, C. J. See 3 B. & Ad. 124.

will be liable: for there is a difference between scienter, fraud in the ordinary sense of the word and fraud in law(<). Therefore, wherever the seller must be taken in law to have known that the representation was false; thus, where the sale is by a factor or other agent, and the deceit is not in the merchant but in the factor, the principal will nevertheless be liable (/t).

ASSUMPSIT FOR MONEY HAD AND RECEIVED.

It often becomes a question, whether, upon the breach of the warranty on the part of the vendor, the purchaser is at liberty to recover back the

(i) It is now clearly settled, that every wilful falsehood is a fraud in law. If the defendant makes a false representation, knowing the same to be false, and the plaintiff thereby receives an injury,—whatever may have been the motive of the defendant in making the false representation, whether it was done to injure the plaintiff, or to benefit himself, or to benefit a third party, or whether it was done wholly gratuitously,—an action lies for the constructive fraud. See Polhillv. Walter, 3 B. & Ad. 114, 123; Corbet v. Brown, 8 Bingh. 103; Foster v. Charles, 6 Bingh. 396, 7 Bingh. 105.

(A) Hern v. Nicholls, Salk. 289; S. C. Holt, 462. For Holt C. J., said, the merchant must be answerable for the deceit of his factor, though not criminaliter, yet civiliter; for, seeing somebody must be a loser by the deceit, it is more reason that he who employs and puts trust and confidence in the deceiver should be a loser, than a stranger. And see Grammer v. Nixon, 1 Str. 653; Southerne v. How, Cro. Jac. 468, 471; Hill v. Gray, 1 Stark. N. P.C. 434; Bull.N. P. 31.

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