Francis H. (Francis Hermann) Bohlen.

Cases on the law of torts (Volume 1) online

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determination was^fhat the~assertion was of mere matter of judg-
ment and opinion ; of a matter of which the defendant had no par-
ticular knowledge, but of which many men will be of many minds,
and which is often governed by whim and caprice. Judgment, or
opinion, in such case implies no knowledge. And here this case
iiffers materially from that in Yelverton ; my brother Grose con-
siders this assertion as mere matter of opinion only, but I differ
■rom him in that respect. For it is stated on this record that the
(defendant knew that the fact was false. The case in Yelverton
admits that, if there had been fraud, it would have been otherwise.
The case of Crosse v. Gardner, Carth. go, was upon an affirmation
that oxen which the defendant had in his possession and sold to the
plaintiff were his, when in truth they belonged to another person.
The objection against the action was that the declaration neither
stated that the defendant deceitfully sold them, or that he knew
them to be the property of another person ; and a man may be mis-
taken in his property and right to a thing without any fraud or ill
intent. Ex concessis therefore if there were fraud or deceit, the
action would lie ; and knowledge of the falsehood of the thing as-
serted is fraud and deceit. But, notwithstanding these objections,
the Court held that the action lay, because the plaintiff had no means
of knowing to whom the property belonged but only by the posses-
sion. And in Cro. Jac. 474, it was held that affirming them to be
his, knowing them to be a stranger's, is the offence and cause of ac-
tion. The case of Medina v. Stonghton, Salk. 210, in the point of
decision, is the same as Crosse v. Gardner, but there is an obiter
dictum of Holt, C. J., that where the seller of a personal thing is
out of possession, it is otherwise ; for there may be room to question
the seller's title, and caveat emptor in such case to have an express
warranty or a good title. This distinction by Holt is not mentioned
by Lord Raym. 593, who reports the same case ; and if an affirma-
tion at the time of sale be a warranty, I cannot feel a distinction
between the vendor's being in or out of possession. The thing is
bought of him, and in consequence of his assertion, and if there be
any difference, it seems to me that the case is strongest against the
vendor when he is out of possession, because then the vendee has
I nothing but the warranty to rely on. These cases, then, are so far
, from being authorities against the present action, that they show
\ that if there be fraud or deceit, the action will lie ; and that knowl-
edge of the falsehood of the thing asserted is fraud and deceit.
Collusion, then, is not necessary to constitute fraud. In the case
of a conspiracy, there must be a collusion between two or more to
' support an indictment; but if one man alone be guilty of an offence


vvhich, if practised by two, would be the subject of an indictment I
for a conspiracy, he is civilly liable in an action for reparation of \
damages at the suit of the person injured. That knowledge of the
falsehood of the thing asserted constitutes fraud, though there be
no collusion, is further proved by the case of Risney v. Selby, Salk.
211, where, upon a treaty for the purchase of a house, the defend-
ant fraudulently afiirmcd that the rent was £30 per annum, when it
was only £20 per annum, and the plaintiff had his judgment ; for the
value of the rent is a matter which lies in the private knowledge of
the landlord and tenant ; and if they affirm the rent to be more than
it is, the purchaser is cheated, and ought to have a remedy for it.
No collusion was there stated, nor does it appear that the tenant ,
was ever asked a question about the rent, and yet the purchaser '
might have applied to him for information; but the judgment pro-
ceeded wholly upon the ground that the defendant knew what he
asserted was false. And, by the words of the book, it seems that
if the tenant had said the same thing he also would have been liable
to an action. If so, that would be an answer to the objection that
the defendant in this case had no interest in the assertion which he
made. But I shall not leave this point on the dictum or inference
which may be collected from that case. If A., by fraud and deceit,
cheat B. out of £1000, it makes no difference to B. whether A. or
any other person pockets that £1000. He has lost his money; and
if he can fi.x fraud upon A., reason seems to say that he has a right
to seek satisfaction against him. Authorities are not wanting on
this point, i Roll. Abr. 91, pi. 7. If the vendor affirm that the
goods are the goods of a stranger, his friend, and that he had au-
thority from him to sell them, and upon that B. buys them, when
in truth they are the goods of another, yet, if he sell them fraudu-
lently and falsely on this pretense of authority, though he do not
warrant them, and though it be not averred that he sold them know-
ing them to be the goods of a stranger, yet B. shall have an action for
th^s deceit. It is not clear from this case whether the fraud con-
sisted in having no authority from his friend, or in knowing that
the goods belonged to another person ; what is said at the end of the
case only proves that "falsely" and "fraudulently" are equivalent
to "knowingly." If the first were the fact in the case, namely, that
he had no authority, the case'does not apply to this point; but if
he had an authority from his friend, whatever the goods were sold
for his friend was entitled to, and he had no interest in them. But.
however that might be, the next case admits of no doubt. For in
T Roll. x^br. 100, pi. I, it was held that if a man acknowledge a fini
in my name, or acknowledge a "judgment in an action of my land,
this shall bind mc forever ; and therefore I may have a writ of
deceit against him who acknowledged it. So if a man acknowledge
a recognizan ce, sta tjite-me jxbant or^taple, there is no foundation
for supposing that in that case the person acknowledging the fine
or judgment was the same person to whom it was so acknowledged.
If that had been necessary it would have been so stated ; but if it


were not so, he who acknowledged the fine had no interest in it.
Again in i Roll. Abr. 95, 1. 25, it is said, "If my servant lease my
land to another for years, reserving a rent for me, and, to persuade
the lessee to accept it, he promise that he shall enjoy the land with-
out incumbrances, if the land be incumbered, &c., the lessee may
have an action on the case against my servant, because he made an
express warranty." Here, then is a case in which the party had no
interest whatever. The same case is reported in Cro. Jac. 425 ; but
no notice is taken of this point, probably because the reporter
thought it immaterial whether the warranty be by the master or
servant. And if the warranty be made at the time of the sale, or
before the sale, and the sale is upon the faith of the warranty, I
can see no distinction between the cases. The gist of the action is
fraud and deceit ; and if that fraud and deceit can be fixed by evi-
dence on one who had no interest in his iniquity, it proves his malice
to be the greater. But it was objected to this declaration that if
there were any fraud, the nature of it is not stated. To this the
declaration itself is so direct an answer that the case admits of no
other. The fraud is that the defendant procured the plaintiffs to
sell goods on credit to one whom they would not otherwise have
trusted, by asserting that which he knew to be false. Here, then,
is the fraud and the means by which it was committed ; and it was
done with a view to enrich Falch by impoverishing the plaintiffs out
of their goods. The cases which I have stated, and Sid. 146, and
I Keb. 522, prove that the. declaration states more than is necessary;
for fraudiilcnter without scicns, or sciens without fraudulenter,
would be sufficient to support the action. But, as Mr. J. Twisden said
in that case, the fraud must be proved. The assertion alone will not
maintain the action ; but the plaintiff' must go on to prove that it
was false, and that the defendant knew it to be so ; by what means
that proof is to be made out in evidence need not be stated in the
declaration. Some general arguments were urged at the bar to
show that mischiefs and inconveniences would arise if this action
were sustained ; for if a man who is asked a question respecting an-
other's responsibility hesitate or is silent, he blasts the character of
the tradesman ; and if he say that he is insolvent, he may not be
able to prove it. But let us see what is contended for : it is nothing
less than that a man may assert that which he knows to be false,
and thereby do an everlasting injury to his neighbor, and yet not be
answerable for it. This is as repugnant to law as it is to morality.
Then it is said that the plaintiffs had no right to ask the question of
the defendant. But I do not agree in that ; for the plaintiffs had
an interest in knowing what the credit of Falch was. It was not
the inquiry of idle curiosity, but it was to govern a very extensive
concern. The defendant undoubtedly had his option to give an
answer to the question or not ; but if he gave none, or said he did v
not know, it is impossible for any court of justice to adopt the pos-
sible inferences of a suspicious mind as a ground for grave judg-
ment. All that is required of a person in the defendant's situation


is that he shall give no answer, or that, if he do, he shall answer
according to the truth as far as he knows. 'J'he reasoning in the
case of Coggs v. Bernard, which was cited by the plaintitt's counsel,
is, I think, very applicable to this part of the case. If the answer
impart insolvency, it is not necessary that the defendant should be
able to prove that insolvency to a jury; for the law protects a man
in giving that answer, if he does it in confidence and without malice.
No action can be maintained against him for giving such an answer,
unless express malice can be proved. From the circumstance of the
law giving that protection, it seems to follow as a necessary con-
sequence, that the law not only gives sanction to the question, but
requires that, if it be answered at all, it shall be answered honestly.
There is a case in the books .which, though not much to be relied
on, yet serves to show that this kind of conduct has never been
thought innocent in Westminster Hall. In R. v. Gunston, i Str.
589, the defendant was indicted for pretending that a person of no
reputation was Sir J. Thornycraft, whereby the prosecutor was in-
duced to trust him, and the Court refused to grant a certiorari,
unless a special ground were laid for it. If the assertion in that
case had been wholly innocent the Court would not have hesitated
a moment. How, indeed, an indictment is that it was merely a
private injury ; but that is no answer to an action. And if a man
will wickedly assert that which he knows to be false, and thereby
draws his neighbor into a heavy loss, even though it be under the
specious pretence of serving his friend, I sav j ; ]».s-/.f fnlihn.^ isti.c 11 m i l\/
luxa^'snhs £rviun .t.
\\ *Ashhurst, J. The objection in this case, which is to the third
ount in the declaration, is that it contains only a bare assertion, and
does not state that the defendant had any interest, or that he col-
luded with the other party who had. But J am of opinion that the
actioa Iie&,nntw^ithstan ding this obj cctioii! It seems to me that the
rule laid down by Croke, J., in Bayly v. Merrel, 3 Bulstr. 95, is a
sound and solid principle, namely, that fraud without damage, or
r^amage without fraud, will not found an action ; but where both
' con£iir_an_action will lie. The principle is not denied by the other
judges, but only the application of it, because the party injured
there, who was the carrier, had the means of attaining certain
knowledge in his own power, namely, by weighing the goods ; and
therefore it was a foolish credulity, against which the law will not
relieve. But that is not the case here, for it is expressly charged
that the defendant knew the falsity of the allegation, and which
the jury have found to be true ; but J ipn consta t that the plaintiffs
knew it, or had any means of knowing it, but trusted to the veracity
of the defendant. And many reasons may occur why the defend-
ant might know that fact better than the plaintiffs ; as if there had
before this event subsisted a partnership between him and Falch
which had been dissolved : but at any rate it is stated as a fact that
he knew it. Tt is admitted that a fraudulent affirmation, when the
party making it has an interest, is a ground of action, as in Risney v.





Selbx, which was a false affirmation made to a purchasei" as to the
rent of a farm which the defendant was in treaty to sell to him..

V/' Lo rd Kenyon, C. J. I am not desirous of entering very fully

into~tIie discussion of this subject, as the argument comes to me
quite exhausted by what has been said by my brothers. But still I
will say a few words as to the grounds upon which my opinion is
formed. All law stands on the best and broadest basis which go to
enforce moral and social duties. Though, indeed, it is not every
moral and social duty the neglect of which is a ground of an action.
For there are, which are called in the civil law, duties of i mpe rfect
iibhgation, for the enforcing of which no action lies~ There are
many cases where the pure effusion of a good mind may induce the
performance of particular duties, which yet cannot be enforced by
municipal laws. But there are certain duties, the non-performance
of which the jurisprudence of which this country has made the sub-
ject of a civil action. And I find it laid down by the Lord Ch. B.
Comyns (Com. Dig. tit. Action upon the Case for a Deceit, A. i),
that, "an action upon the case for a deceit lies when a man does any
deceit to the damage of another." He has not, indeed, cited any
""autTioiTty^TorTiis^opmion liDuthis opinion alone is of great authority,
since he was considered by his contemporaries as the most able
lawyer in Westminster Hall. Let us, however, consider whether
that proposition is not supported by the invariable principle in all the
cases on this subject. In 3 Bulstr. 95, it was held by Croke, J., "that
fraud without damage, or damage without fraud, gives no cause
of action ; but where these two do concur, there an action lieth."
It is true, as has already been observed, that the judges were of
opinion in that case that the action did not lie on other grounds.
But consider what those grounds were. Dodderidge, J., said: "if
we shall give way to this, then every carrier would have an action
upon the case ; but he shall not have any action for this, because it
is merely his own default that he did not weigh it." Undoubtedly,
where the common prudence and caution of man are sufficient to
guard him, the law will not protect him in his negligence. And in
that case, as reported in Cro. Jac. 386, the negligence of the plain-
tiff himself was the cause for which the Court held that the action
was not maintainable. Then, how does the principle of that case
apply to the present? There are many situations in life, and par-
ticularly in the commercial world, where a man cannot by any
diligence inform himself of the degree of credit which" ought to
be given to the persons with whom he deals ; in which cases he must
apply to those whose sources of intelligence enable them to give
the information. The law of prudence leads him to apply to them :
and the law of morality ought to induce him to give the information
required. In the case of Bulstrode, the carrier might have weighed
the goods himself; but in this case the plaintiffs had no means of
knowing the state of Falch's credit but by an application to his
neighbors. The same observation may be made to the cases cited
by the defendant's counsel respecting titles to real property. For


a person does not have recourse to common conversation to know
the title of an estate he is ahout to purchase ; but he may inspect the
title deeds; and he does not use common prudence if he rely on
any other security. In the case of Bulstrode, the Court seemed to
consider that damnum and injuria are the grounds of this action;
and they all admitted that, if they had existed in that case, the action
would have lain there; for the rest of the judges did not controvert
the opinion of Croke, J., but denied the application of it to that
particular case. Then it was contended here that the action cannot
be maintained for telling a naked lie ; but that proposition is to be
taken suh modo. If, indeed, no injury is occasioned by the lie, it is
not actionable ; but if it be attended with a damage, it then becomes
the subject of an action. As calling a woman a whore, if she sustain
no damage by it, is not actionable ; but if she lose her marriage by it,
then she may recover satisfaction in damages. But in this case
the two grounds of the action concur; here are both the damnum ct
injuria. The plaintiffs applied to the defendant, telling him that
they were going to deal with Falch, and desiring to be informed of
his credit, when tiie defendant fraudulently, and knowing it to be
otherwise, and with a design to deceive the plaintiffs, made the
false assertion which is stated on the record, by which they sus-
tained a considerable damage. Then, can a doubt be entertained
for a moment but that this is injurious to the plaintiffs? If this
be not an injury, I do not know how to define the word. Then, as to
the loss ; this is stated in the declaration, and found by the verdict.
Several of the words stated in this declaration, and particularly
fraudulenia L, did not occur in several of the cases cited. It is
admitted that the defendant's conduct was highly immoral and detri-
mental to society. And_I arn of opinion tliat t.he^actioiT_^is main-
tninable nnthe oroumls oPdeceTt lii fh e defendant, an3 the injury"::^
andjosstn jhe p laintiffs.

Rule for arresting the judgment discharged.

Until this decision the editor has found no case where an action of de-
ceit was maintained e.xcept against a party to the contract induced thereby.
Indeed it may be said that no such action had theretofore been maintained
except against a vendor. Baily v. Merrcll, 3 Bulstrode 94 (1615), an action
of deceit brought by a carrier against the owner of goods carried for falsely
stating their weight, whereby, his cart being overweighted, two of his horses
were killed, went against the plaintiff because he could readily have discov-
ered the falsity of the statement, and, while Croke, J., said that where fraud
and damage concur an action lies. Ilaughton, J., is of the opinion that the
deceit must be "parcel of the bargain."

No action lay even on a simple warranty against any one but a vendor. If
any other, even a servant, gave a warranty under seal an action of covenant
lay, but otherwise the vendee had no remedy. XI Edw. IV 6 pi. 10 (1471).

As late as Roswcll v. Vaughan, Cro. Jac. 196 (1607), the warranty, or
affirmance of title by one in possession, must be given or made at the time of
the sale and be part of it and not prior to it though operating as an inducement
thereto: "in an action of deceit in the case of a bargain with a warranty, if
the vendor traverses the bargain, this affects the whole matter," II Edw. IV
pi. 6 (1471). Until Lcakins v. Clissel. 1 Siderfin 146 (16.^4), no action of de-
ceit seems to have lain except upon a warranty expressed or implied in the
sale of goods by one in possession thereof (42 Ass. pi. 8. Hearnes Pleader

668 ATWOOD r. chapman.

224), or where the vendor bv statute was required, as were vintners and
victuallers, to sell onlv sound 'goods. 7 Hen. IV 14 pi. 19 (1406), 9 Hen. VI
53 pi. 37 (1430), XI Edw. IV 6 pi. 10 (1471).

In 9 Hen. VI pi. 53, counsel for the plaintiff cites a case then lately de-
cided in the King's Bench, "where one sold a piece of woolen cloth, knowhig
it to be raw and not well pulled ; and this was adjudged good without war-
ranty," but it was at once pointed out "that the writ was warrantizando, etc."

Falsity of Statement.


Supreme Judicial Court of Maine, 1877. 68 Me. 38.

Danfortii, J. This is an action to recover damages for an
alleged deceit in relation to the title to certain lands conveyed by
ciuitclaini_ deed from the defendant to the plaintiff. It is before ns
upon exceptions to the exclusion of certain testimony offered, and
to the order of a nonsuit upon the testimony.

(After discussing the first count which alleged that the defend-
ant had falsely stated that he had a good title.) The second count
is more full, and though the cause of action may not be stated with
entire accuracy, it is, perhaps, sufficiently so to enable us rightly to
understand the "person and case" as presented by the testimony.

In this count the cause of complaint is that the defendant falsely
stated his title to be good, and fraudulently concealed a material
^ fact connected with it, which rendered it defeasible and subsequently
defeated it, whereby the plaintiff took nothing by his deed. The
direct representation of the title is the same as in the first count, and
standing alone, the same suggestions will apply. But taken in con-
nection with the alleged concealment, another and a very different
question is presented. It may also be true that the concealment
alleged, by itself alone, might not be a cause of action. The rule of
caveat emptor applies as well to real as to personal property. But
this rule does not authorize deception in what is said or unsaid. If
a E£ rson makes representations as to quality or title he is to speak
the truth, or" if he is placed or places himself in a position where
jili^ilence will convey a false impression, his suppression of the
truth will be as much a fraud as a false statement. Hence, whether
» the withholding of a fact is fraudulent must depend upon the ac-
V compa"nying circumstances.

Tlie testimony shows that the defendant's title to the land sold

depended upon a ji2djr"ieiiU<=»4-4^^^ co urt, upon w hirh nn ej^ecution
issued and was levied upon one par cel, while the other as an equity
otredemption was sold on the same execution. Within a year from
the recovery of the judgment-^ petition for a review of the action
was commenced, and was pending in court at the time of the convey-


ance in question. Of this petition the defendant had knowledge,
as he appeared as counsel for the respondent. The final result of
this petition was the entire reversal of the judf^ment. To one parcel
of land tile defendant liad a deed from the officer, to the other a
deed from the judgment creditor. The fact concealed from the
plaintiff was the pendency of this petition for review. Was it the
duty of the defendant to make it known ? We think this question
must be answered in the affirmative.

The testimony shows that the defendant had this knowledge
while the plaintiff had not, and such was its nature and the pro-
fession of the two men, that it may with propriety be said to have
been exclusively with the defendant ; and, for the same reasons,
as well as from other testimony, the jury would have been fully
justified in the conclusion that the purchaser relied upon the seller
to communicate all such facts.

But the testimony goes further than this.' The defendant put
himself in the position that by withholding the fact he must almost
necessarily have conveyed a false impression. He not only stated
that his title was good but he gave its origin and history, producing
the papers to confirm it.

If he gives any fact he must give all the qualifications of that
fact, otherwise he fails to give a true statement. When he says his
title is good, and withholds an important fact which tends to impair
it, he states more than the truth will authorize. When he produces
a judgment from a court of competent jurisdiction with no apparent
defect in it, as the foundation of his title, the plaintiff certainly had
a right to understand him as asserting that, at least so far as he
knew, there was no infirmity connected with that judgment, no
existing fact growing out of it, which might destroy it as a muniment
of title.

Exceptions sustained^

Appleton, C. J., Walton, Dickerson, Barrows, and Peters, JJ.,

^ Mere non-disclosure of material facts, however morally censurable, how-