Francis H. (Francis Hermann) Bohlen.

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where misstatements of amount of hay cut on a farm were held actionable.

JUDD Z'. WALKliR. j(jj

The statement of facts by Judge Norloni anu iiis conclusions of law
are found in 114 Mo. App. 128, 89 S. W. 558. We approve the
statement of facts by the learned judj^e and his conclusions of
law. Would it not be a shame to jurisi^rudence if, on the facts
found, the conclusions drawn did not irresistibly follow?

As we read the record there is present here a typical case of
actionable fraud and deceit, for instance, false representations of the
vendor on material facts leading up to the sale, with his knowledge
of their falsity and a present intention they should be believed and
acted on by the vendee, coupled with the vendee's ignorance of their
falsity and his reliance and acting on such representations to his re-
sulting damage. The fraud, resting in parol, may be proved by
parol, and the written documents were mere steps in tliat proof. It
is elementary that a grantee, defrauded as was Judd, is not obliged
to sue on the covenants of warranty in his deed, nor need he go
into equity to rescind the contract, but he may hold what he got
under the contract, and sue at law for his damages. That is what
Judd did in this case.

Mires v. Siimmerville, 85 Mo. App, 183, is scantily reported on
the facts, and we shall not say the case was not well decided on the
record in that case. But the learned judge who wrote the opinion
ruled to the effect that, if a vendee is well acquainted with the land
purchased, and was over it at the time of the trade, with opportunity
to measure the same, he cannot be heard to charge the vendor with
fraud in misrepresenting the number of acres it contained. That
rule is too harsh as a general proposition. Of course, if the vendor
and vendee have equal opportunities to know the acreage, and no
false representations are made and acted on, the rule is well enough.
But if the rule be construed to mean that a vendee must survey tlie
land and measure it, no difference as to the size of the tract or
whether its boundaries are irregular or not, and cannot rely on the
positive assurance of the vendor as to his knowledge of the number
of acres in his own land, then we do not agree to it as a good
doctrine. Such defect as a deficiency in acreage is not a patent de-
fect to be got at by the use of natural faculties and the exercise of
ordinary diligence in a land sale. Due diligence does not require
that the vendee should suspect the vendor of lying, nor that the
\cndee should survey and measure the land to prevent being
deceived by the lies of the vendor. It has sometimes been loosely
said that the negligence of the vendee will prevent recovery for
the fraud of the vendor. The word ''negligence" used in that con-
nection, as we understand its meaning in the law of negligence, is an
unhappy expression. Fraud is a wilful, malevolent act, directed to
perpetrating a wrong to the rights of another. That such an act in
a vendor should not be actionable because of the mere negligence or
inadvertence of the vendee in preventing the fraud ought to be
neither good ethics nor good law. When one voluntarily shuts his
eyes when to open them is to see, such a one is guilty of an act of
folly (in dealing at arm's length with another) to his own injury:
and the affairs of men could not go on if courts were being called

768 cuRTLEv z: security savings society.

upon to rip up transactions of that sort. For instance, if B. want:
oats, and A. shows B. an open sack of beans (both A. and B. being
sui juris, and knowing beans when the bag is open), and A. tells
B. they are oats, B. ought not to complain when he buys the sack
because he gets beans. If C. points D. to his horses in the field,
and tells D. they are black, when in fact they are white, and D.
buys them for black horses, he is guilty of an act of folly, and has
no remedy. If E. takes F. over his hilly, broken land, and tells F.
it is level and arable, and F. buys it as level and arable land, he
ought not to recover. In such case the fraud is made innocuous by
the fact that it was patent to the vendee. The vendee is held to know
what his own eyes would disclose, and, knowing, could not be de-
ceived. But when an element of wilful deception leads up to a
transaction, the whole situation changes. Take a very old case put
in a well authenticated record: "Joab said to Amasa, Art thou in
health, my brother? And Joab took Amasa by the beard with the
right hand to kiss him. But Amasa took no heed of the sword that
was in Joab's hand ; so he smote him therewith in the fifth rib, and
shed out his bowels to the ground, and struck him not again ; and he
died." In that case was Amasa to blame for being deceived by the
usual sign of oriental, friendly salutation, though a fighting soldier
held sword in hand ? And, generally speaking, until there be written
into the law some precept or rule to the effect that the heart of a
man is as prone to wickedness as is the smoke to go upward, and
that every one must deal with his fellow man as if he was a thief and
a robber, it ought not to be held that trust cannot be put in a positive
assertion of a material fact, known to the speaker and unknown to
the hearer, and intended to be relied on.^


Supreme Court of Washington. March 22nd, 1907. 46 Wash. 50.

FuLLERTON, J. The appellant at the trial objected to the intro-
duction of any evidence on the part of the respondent on the ground
that the complaint did not state facts sufficient to constitute a cause

"- Accord: Stevens v. Giddings, 45 Conn. 507 (1878) ; Starkweather v. Ben-
jamin, 32 Mich. 305 (1875) ; Coon v. Atwell, 46 N. H. 510 (1866) ; Whitney
V. Allaire, 1 X. Y. 305 (1848) ; Beardsley v. Duntley, 69 N. Y. 577 (1877) ;
Ledbetter v. Davis, 121 Ind. 119 (1889); Cawston v. Sturgis, 29 Ore. 331
(1896) : Griswold \. Gebbie, 126 Pa. 353 (1889).

Contra: Gordon v. Parmelee, 2 Allen 212 (Mass. 1861); "the vendors,"
said Bigelow C. J., "pointed out to the vendees the true boundaries of the
land. The defendants had the means of ascertaining the precise quantity of
land included within the boundaries. They omitted to measure it, or to cause
it to be surveyed. By the use of ordinary vigilance and attention they might
have ascertained that the statement concerning the number of acres, on which
thev placed reliance, was false. They cannot now seek a remedy for placmg
confidence in affirmations which, at the time they were made, they had the
means and opportunity to verify and disprove." In Roberts v. French, 153
Mass. 60 (1891). it was however held that a vendee might rely on statements
as to the length of the boundaries, if the defendant asserted that he had
measured it himself or otherwise conveyed "the notion of such a measure-


of action. In support of this contention, the appellant argues that
false representations, to be actionable, must be made under such cir-
cumstances as will justify a reasonably prudent person in acting
upon them, and since it appeared on the face of the complaint that
the representations upon which the respondent relied were made
with reference to the title to the property, which was a matter of
record accessiljle to the respondent, he cannot be said to have acted
as a reasonably prudent person ought to have acted, since he did not
avail himself of the opportunity afforded him to test the truthfulness
of the representations, and hence cannot be heard to complain of
being defrauded. But the argument is not sound. While this court
has, in common with many other courts, held that false representa-
tions, involving mere matters of opinion, or question of judgment,
as much within the knowledge of one party as the other, are not
grounds for an action of deceit, it has also held that false representa-
tions as to quantity of land contained in a given description, or
false representations as to the boundaries and location of land, or
as to its title, if made positively and with the intent that they should
be relied upon, were not of that sort, but were actionable, if relied
upon by the vendee to his injury. Hanson v. Tompkins, 2 Wash.
508, 27 Pac. 73 ; Scars v. Stinson, 3 Wash. 615, 29 Pac. 205 ; Laivson
v. Vernon, 38 W'ash. 422, 80 Pac. 559, 107 Am. St. 880 ; Freeman v.
Gloyd (Wash.), 86 Pac. 105 1. Such, also, is the general rule.
14 Am. & Eng. Ency. Law (2d Ed.) pp. 24, 88; 29 Am. & Eng.
Ency. Law (2d Ed.) 654-657; David v. Park, 103 Mass. 501. The
reason usually given for the distinction is that representations as to
the quantity of land in a given tract, its title, or as to its location
on the ground, are representations as to matters of fact, not of opin-
ion, and that representations of a vendor to a vendee as to matters
of fact which he knov;s to be false, and on which the vendee relies
to his injury, will sustain an action of deceit, even if the vendee
might have discovered the fraud by further inquiry ; while it is only
representations involving matters of judgment or opinion that do
not afford the remedy of deceit.^

/^ ;e^^.


{House of Lords. 1907. L. R. App. Cas. 351.)

Lord Loreburn, L. C. ^ly Lords, this is an action for deceit
brought by Alessrs. Pearson & Son, contractors, against the Dublin

^Accord: JVatsou v. Ativood. 25 Conn. 313 (1856) ; Kerwin v. Friednw".
127 Mo. -App. 519 (1907). plaintiff not precluded from recovery by the fnct
that he had not examined tlie record because of lack of opportunity or con-
fidence in vendor; Rollins v. Qtiiviby. 200 Mass. 162 (1908), plaintiff did n-t
search records to see whether mortgage was tirst mortgage as represente'.
he not knowing that the record could or should be searched and being in-
duced not to employ an attorney by defendant's statement that it was not
necessary: David v. Park. 103 Niass. 501 (1870), plaintiff not required ii
search Patent Office Records to verify statements as to what a patent C'^ -
ered: Kchl v. Abram. 210 Til. 218 (1904) ; Rilc\ v. Bell, 120 Iowa 618 (1903^
D. 926-927: Hunt v. Barker, 22 R. I. 18 (1900) : and see Kerr v. Kitchen, 7
Pa. 486 (1848) ; but see Pence v. Young, 22 Ind. .\pp. 427 (1899).


Corporation. Inasmuch as I am about to propose that the case be
remitted for a new trial, it is desirable that I should say no more than
is necessary to explain my view.

The plaintiffs' case is that they were induced to enter into a
contract for the construction of certain sewage works by statements
made by and on behalf of the defendants as to the existence to a
depth of nine feet below Q£dnance_datum of an old wall. Undoubt-
edly evidence was adducedaTtnTtriarfrom which the jury might,
if they thought right, conclude that the plaintiffs were so induced by
statements made on behalf of the defendants. Also, there was
evidence for the jury that those statements were made either with a
knowledge of their falsity, or (which is the same thing) with a
reckless indifference whether they were true or false, on the part
of the engineers employed by the defendants to make the plans
which "were submitted to plaintiffs as the basis of the tender. And
had the case rested there I gather that the Chief Baron would have
left the case to the jury, and that the learned judges who subse-
quently had this litigation before them would have approved this

But another feature of the case was considered fatal to the
plaintiffs' claim. The contract contained clauses, which I need not
cite at length, to the effect that the contractors must not rely on any
representation made in plans or elsewhere, but must ascertain and
judge of the facts for themselves. 'And, therefore, the Chief Baron
withdrew the case from the jury. As I understand it, the view
he held, in substance confirmed by the Court of Appeal, was that
the plaintiffs, so forewarned, had no right to rely on any representa-
tion, and could not be heard to say they were induced by statements
on which by contract they were not to rely. Or, at all events, it was
said that the defendants, being themselves innocent, are protected by
such clauses against the consequence of contractors acting on false
statements made by defendants' agents, however fraudulent those
agents might be.

Now it seems clear that no one can escape liability for his own
fraudulent statements by inserting in a contract a clause that the
other party shall not rely upon them. I will'jiot say that a man
himself innocent may not under any circimistances, however pecu-
liar, guard himself by apt and express clauses from liability for
the fraud of his own agents. It suffices to say that in my opinion
the clauses before us do not admit of such a construction. They
contemplate honesty on both sides and protect only against honest
mistakes. The principal and the agent are one, and it does not
signify which of them made the incriminated statement or which of
them possessed the guilty knowledge.

It is not necessary to say anything as to the Public Authorities
Protection Act, for the King's Bench Division held that it did not
apply to this case, and I am entirely of the same opinion.

I respectfully recommend to your Lordships that this case be
sent for a new trial, and that the respondents pay the costs of this


appeal and the costs in the Court of Appeal, the costs of the first trial
to abide the event.

Lord James of Hereford. But the learned Chief Baron, whilst
accepting the view that the plaintiffs had produced prima facie evi-
dence of deceit, apparently removed the case from the jury upon the
ground that clause 43 of the specification protected the defendants
from liability.

Now the learned Chief Baron in respect of this clause expressed
the opinion tiiat the contractor was not entitled in point of law
to say he acted upon the statement contained in the plans. He was
told to act upon his own judgment, and ought to have done so.

If this dictum be read as general in its terms, and so applied, it
mav be read as conferring considerable advantage upon the designers
of fraud. At any rate, by inserting such a clause those who framed
it would run a fair chance of the contractor saying, "I assume that
those with whom I deal are honest and honourable men. I scout
the idea of their being guilty of fraud. An inquiry testing the plan
will be expensive and difficult, and so I will not make it." The pro-
tecting clause might be inserted fraudulently, with the purpose and
hope that, notwithstanding its terms, no test would take place.
When the fraud succeeds, surely those who designed the fraudulent
protection cannot take advantage of it. Such a clause would be good
protection against any mistake or miscalculation, but fraud vitiates
every contract and every clause in it.

Lord Atkinson. The direction given to the jury is to be up-
held on the grounds upon which it was purported to be based, it
must, in my opinion, be because these several articles of the con-
tract, on their true construction, are to be held to embody a con-
tract by the plaintiffs that they in efifect are not, under any circum-
stances, to have a remedy by action for deceit for any fraud which
may be practised upon them by the defendants or by those acting
on their behalf in the nature of a false representation, that is a con-
tract to submit to a fraud.

As at present advised I am inclined to think, on the authority
of Tullis V. Jacson, (1892) 3 Ch. z^i, and Broxvnlic v. Campbell,
(1880) 5 App. Cas. 925, 937, 956, that such a contract would be
illegal in point of law. And, with the most profound respect for
the Chief Baron, I do not think that the articles of the contract
relied upon can, on their true construction, be held to have had
fraud, whether conscious or unconscious, within their purview or
contemplation, or to apply at all to such a case of fraud as the
present is alleged to be. They were, I think, intended to apply, and
do apply, to inaccuracies, errors, and mistakes, or matters of that
sort, but not to fraud, whether of principal or agent or both com-

(Only a part of the opinions of Lords James of Hereford and
Atkinson are given, and the concurring opinions of Lord Ashbourne
and 'the Earl of Halsbury are omittecl.)

The order of the Court of Appeal of Ireland reversed and the
judgment of the King's Bench Division of Ireland which reversed



the decision of Palles, C. B., and entered judgment for the appellants
on the ground that there was a question of fact for the injury upon
the allegation of fraud, restored.

Section 6.

Plaintiff's reliance on the defendant's statements.


120 Massachusetts Reports 1876, page 21.

Tort. The declaration alleged that the defendant desired the
blaintififs to sell him a certain quantity of leather, and, to induce ihe
Iplaintiffs to sell the goods, offered in payment therefor the prom-
issory note of Marshall Smith, and falsely represented to the plain-
Itiffs that Smith "was a person of ample means and ability to pay
'said note, and that the note was good," and that the plaintiffs, rely-
ing upon said representations, sold the leather to the defendant and
took the note in payment therefor ; that Smith was then insolvent and
known so to be by the defendant. There was also a count in contract
for goods sold and delivered ; both counts being for the same cause
of action. The answer denied the several allegations of the declara-
tion and averred that the plaintiffs took the note after full inquiry,
and wnth the same opportunity for ascertaining Smith's pecuniary
responsibility which was possessed by the defendant. Trial in the
Superior Court, before Aldrich, J.

The defendant contended that if the plaintiffs took time to in-
quire, as to Smith's responsibility before delivering the goods and
receiving the note, and were convinced by what they heard that it
was a fair risk to take, they could not recover in this action under
the pleadings ; that the pecuniary standing of the man, and the
amount of the credit to which he is entitled, is a matter of common
knowledge or judgment; and if the plaintiffs availed themselves of
this common knowledge and judgment before completing the trans-
action and delivering the goods and taking the note, and were in-
fluenced by what they learned from other persons than the defend-
ant, they could not now hold him responsible in this action.

Upon this point the judge instructed the jury, in substance, that
if tliey found that representations were made by the defendant, that
they were false, and that the defendant knew them to be so, the
cjuestion then was whether they influenced the plaintiffs or induced
them to take the note ; because, unless such was the fact, the plain-
tiffs had no ground of complaint against the defendant ; that it was
not necessary for the plaintiffs to satisfy them that the fraudulent
representations of the defendant were the sole operating cause that
induced the plaintiffs to take the note; that though they were re-


ferred to other parties for information, and made inquiries, still, if
on the whole they would not have taken the note but for Grout's
representations, this part of their case was sustained ; but that if
by their inquiries of other parties, irrespectively of anything the
defendant had said to them, they were satisfied to take the note, they
were not entitled to recover.

The jury returned a verdict for the plaintifYs ; and the defend-
ants alleged exceptions.

Colt, J. No question of pleading arises upon the bill of ex-
ceptions ; nor does it state all the instructions given to the jury.
Under the instructions reported upon the point raised, and those
which, in the absence of anything to the contrary, we must presume
to have been given, the jury have found that the allegations of the
first count were proved.

The defendant asked the court to rule, in substance, that if the
plaintiffs took time to inquire as to the responsibility of the maker,
availed themselves of the common knowledge and judgment as to his
pecuniary standing, and were influenced by what they heard before
taking the note, they could not recover. But, instead of this, the
court told the jury that it was not necessary for the plaintiffs to
satisfy them that the alleged representations were the sole caus £,_or
the sole operating cause, inducing the plaintiffs to take the note ; for
if they would not have taken it except fo r the defendant's repre-
sentations, then they could recover, although they were in part con-
trolled by other influences, for which he was not responsible.

The instruction thus given appears to have been well adapted to
and sufficient for the case presented by the evidence and the instruc-^
tion requested was properly refused. It is not necessary that the
false representations should have been the sole or even the predomi-
nant motive; it is enough if they had material influence upon the
plaintiff", although combined with other motives. Mattliczcs v. Bliss,
22 Pick. 48.

Exceptions overruled.


Court of Errors of the State of New York, 1833. 11 Wendell 376.

Walworth, Chancellor.^ I can see nothing in the charge of the
judge, at the circuit, which w-as calculated to mislead the jury. He
certainly was right in saying that it was not only material whether

' The facts to which Chancellor Walworth's charges allude are briefly as
follows :

.*\ddington had given to one Baker a letter to a Mr. Wilson, in which,
after stating briefly certain business dealings between himself and Baker, he
concludes : "Any assistance you may give him by way of buying would be
greatly acknowledged, he being an acquaintance of mine." In fact Baker
was Addington's nepliew, and was largely in debt to him. .-Vddington held two
judgments against Baker and also a bond warrant authorizing a confession
of judgment, the total amount of $2220.

The plaintiff sold goods to Baker through a clerk named Havens. When



the recommendation through Wilson constituted the only recom-
mendation ; that it was sufficient if the plaintiff was moved by the
recommendation in giving the credit. It appears in this case that the
letter of Hickcox, the merchant at Buft'alo, was written in good
faith, although it does not distinctly appear what the precise contents
of that letter were; and there is no doubt that the letter, as well
as the false and fraudulent representation of Baker that he had been
coming to Wilson, had more or less influence on the mind of the
person giving the credit ; yet if the recommendation through Wilson
was necessary to be superadded to enable Baker to obtain the credit,
the defendant is as much liable for the damage sustained, as if that
had been the only inducement to the credit. If the mind of the
vendor as to giving the credit was nearly balanced, and the jury
were satisfied that this fraudulent act of the defendant turned the
scale, and induced him to part with the goods, he who was guilty of
the fraud was properly holden to be answerable for the consequences
thereof. Even where two persons, without preconcert, are guilty of
fraudulent misrepresentations as to the credit of a purchaser, if the
representations of both were necessary to induce the vendor to part
with his goods, either might be made liable for the whole- loss,
as there is no contribution as between wrongdoers. The fact that the
clerk went to Wilson to obtain information as to the credit of
Baker, although he had before seen the letter of Hickcox, and after
inquiries had been made of one of the members of the firm to whom
that letter was addressed, was of itself sufficient to authorize the jury
to conclude he was not satisfied with the recommendation, what-
ever it might have been, which was contained in that letter ; and in
the language of the judge, that the mind of the vendor was moved
in giving the credit, by the recommendation of the plaintiff through


Baker introduced himself to Havens, he showed a letter from a Mr. Hickcox
addressed to a mercantile house in New York, of whom inquiries were made
by the plaintiff. Baker also gave a reference to Mr. Wilson, upon whom
Havens called. Wilson said that he had received a letter from Addington
in regard to Baker, but did not show the letter. In answer to an inquiry by
Havens as to whether he would trust Baker, Wilson said, that if he were
selling goods he would sell to Baker on Addington's recommendation.