the case of sufficient, there is an exception where the parties stand in the Exception in relation of vendor and purchaser, in which case a misstatement vendor and as to the highest price which the one party has it as his intention purchaser. to give, or the lowest price which the other has it as his intention to accept, will not afford a cause of action (a). As the object of such misstatement is undeniably to deceive, the exception must be regarded as somewhat anomalous, and the only explanation seems to be, that it is so customary for persons standing in that relation to tell falsehoods of that description that no reasonable person ought ever to be deceived by them, and it is the party's own fault if he is. The purchaser is not bound to disclose the highest price he chooses to give, but is "at liberty to do that as a purchaser which every seller in this town does every day, who tells every falsehood he can to induce a buyer to purchase" (b). Indeed, it has been said that persons standing in the position of vendors or purchasers may with impunity make certain kinds of misstatements as to which there can be no question but that they are misstatements of fact. An action of deceit cannot be maintained against a vendor for having falsely affirmed that a person bid a particular sum for the estate, although the purchaser was thereby induced to purchase it and was deceived in the value" (c). If that be law it would seem clear that the exemption from liability for the species of deception now under discussion does not depend upon any supposed distinction. between a statement of intention and a statement of fact. It is, however, actionable, and indeed punishable under the criminal law, for a person to effect a sale of goods, by wilfully and fraudulently making a misrepresentation to the buyer as to the nature of a chattel in specie (d). 66 As with intention so with opinion; the question whether a man Misstatement does or does not entertain a particular opinion is a question of of opinion. fact. An expression of opinion not honestly entertained, and intended to be acted upon, cannot be regarded otherwise than as a fraud (e). The obstacle in the way of maintaining an (a) Vernon v. Keys, (1810-12) 12 East, 632; in Exch. Ch. 4 Taunt. 488. (b) Per Mansfield, C.J., Vernon v. Keys, (1812) 4 Taunt. p. 493. (c) Sugd. V. & P., 14th ed. p. 2, citing Rolle, Ab. 101, pl. 16. (d) Reg. v. Roebuck, (1856) 7 Cox C. C. 126. (e) See per Willes, J., Anderson v. Pacific Insurance Co., (1872) L. R. 7 Misstatement of legal position. Express representa. tion. action for a false representation as to a mere matter of opinion lies in the difficulty of proving what the defendant's real opinion was. A misrepresentation as to a person's legal position may be a sufficient misstatement of fact to afford matter of defence; thus a fraudulent misstatement as to the legal effect of a deed will preclude the party guilty of the fraud from enforcing the deed (a). And a similar rule prevails where, in the absence of independent advice, a material fact has been kept back from the knowledge of the party executing the deed (b), but whether such concealment or misstatement will give a cause of action for deceit has apparently never been decided, though there seems to be no valid reason why it should not (c). A misrepresentation may be either express, or implied from conduct. Even where a representation is in express terms it may be open to question what is to be understood by them. The proper construction to put upon the words used is not necessarily the literal one. "If a person make a representation of that which is true, if he intends that the party to whom the representation is made should not believe it to be true, that is a false representation" (d). Conversely if a statement be in terms untrue, but not intended or not calculated to be interpreted in its literal, sense, it cannot be charged as a deceit. To this latter head may possibly be referred the case of exaggerated praise by a vendor (e), as where he says his goods are the best in London for the price, he knowing that the very same articles are procurable in the immediate neighbourhood at a lower price. He knows that his statement will be construed as mere puffing. Again, fragmentary statements may be in terms true so far as they go, but if they suggest that which is false, and are intended C. P. p. 69; though in Peek v. Gurney, (a) Hirschfeld v. London, Brighton & 121; and see O'Connor v. Foley, (1905) 1 Ir. R. 1. (c) See West London Commercial Bank v. Kitson, (1884) 13 Q. B. D. 360. (d) Per Alderson, B., Moens v. Heyworth, (1842) 10 M. & W. p. 158. (e) Though it may also be explained on the ground given above, that the case of vendor is anomalous. 66 Sup to do so, that will constitute an actionable fraud (a). A misrepresentation may be implied from a party's conduct; Representaif one conducts himself in a particular way with the object of from conduct. tion implied fraudulently inducing another to believe in the existence of a certain state of things contrary to the fact and to act upon the basis of its existence, and damage results therefrom to the party misled, he who misled him will be just as much liable as if he had misrepresented the facts in express terms (c). If a person goes into a shop in a University town, not being a member of the University, and purchases goods on credit, the fact that he is at the time wearing a college cap and gown amounts to a representation that he is a member of the University, and, therefore, may be safely trusted, although he makes no statement in terms to that effect (d). Again it amounts to fraudulent misrepresentation, sounding in damages, for a person wilfully and deliberately to induce an innocent person to commit a statutory offence, by representing the obnoxious act as being neither illegal nor immoral (e). Wilful incitecommit crime. ment to Repudiation obtained by of contract And where a transaction between two parties is tainted by an original misrepresentation by one of them neither laches nor condonation will be imputed to a plaintiff who has continued misrepresento make payments (under protest) after finding out the (a) See per Lord Cairns, Peek v. Gurney, (1873) L. R. 6 H. L. p. 403. (b) Per James, L.J., Arkwright v. Newbold, (1881) 17 Ch. D. p. 318; and see per Lord Selborne, Coaks v. Boswell. (1886) 11 App. Cas. p. 236. (c) As to what amount and character of wilful misrepresentation will, and will not, entitle a plaintiff to an injunction restraining the defendant from continuing a series of misstatements (d) Rex v. Barnard, (1837) 7 C. & P. (e) Burrows v. Rhodes and Jameson, (1899) 1 Q. B. 816. tation. Representa misrepresentation. Such payments being held not to amount to an affirmation of the contract by him (a). An instance of misrepresentation by conduct arises in the case tion of safety of issuing for use a chattel which, to the knowledge of the party implied in issue of chattels for use. Sale of dangerous chattel. issuing it, cannot safely be used in the way in which he knows that it is likely to be used. Such issue for use amounts to a representation that it may be safely used, and presumably none the less is this so where the thing is delivered in pursuance of a contract of sale. It is conceived that a person who sells a gun to another for use impliedly represents thereby that so far as he knows the gun is a safe one (b). And this representation incorporates in the act of sale itself, alike by implication of law and by statute, a warranty of such fitness; which the vendor cannot limit by a merely general repudiation of warranty applying to all the various classes of goods in which he deals. He must, in order to make such repudiation apply to the sale of a specific article, which he knows to be of an unusually dangerous nature, at the time of sale, inform the purchaser of the exceptional risk attendant upon its use (c). So, too, one who sells animals which he knows to be suffering from an infectious disease, and which he also knows. the purchaser is likely to put along with other uninfected animals of his own, is presumably liable to an action of deceit if by reason of the non-disclosure of the disease such other animals of the purchaser are injured (). Thus, where the defendant knowingly (a) Molloy v. Mutual Reserve Life Assurance Co., (1905) 22 T. L. R. 59. (b) It is on this ground alone that the question left by Parke, B., to the jury in Langridge v. Lery, (1837) 2 M. & W. 519, whether the defendant warranted the gun to be a safe and secure one, can be explained; since, so far as appears from the evidence in that case, the only express representation was that the gun was by Nock, which did not necessarily import any statement that the gun was sound. Its being unsound was quite consistent with the representation being true. (c) Clarke v. Army & Navy Cooperative Society, (1903) 1 K. B. 155, C. A. For Sale of Goods Act at length, see Chitty on Contracts, Ch. XIII. (d) In such cases no doubt fraud is not strictly essential to liability. It was seen above (p. 479) that where the injury resulting from the plaintiff's having been misled into acting as he did was a physical injury, it is enough to show negligence. If a person when issuing a thing for use omits from pure forgetfulness to disclose a dangerous character which he knows it to possess he is liable for any damage that ensues. But a vendor of an article which he knows to have some dangerous quality, which would render it unsaleable if disclosed, does not omit to disclose it from forgetfulness; in his case therefore the action is more appropriately framed in sold a diseased cow at a market without disclosing the fact of the disease, and the purchaser put the cow in a field with other cattle which caught the disease and died, Blackburn, J., said, “I entertain no doubt that the defendant by taking the cow to a public market to be sold, though he does not warrant her to be sound, yet thereby furnishes evidence of a representation that so far as his knowledge goes, the animal is not suffering from any infectious disease. To say otherwise would be to run counter to the common sense of mankind" (a). In Mullett v. Mason (b), Willes, J., in the course of argument expressed an opinion that where a man buys an animal without any express warranty of freedom from disease, his putting it along with other animals is not the natural consequence of the purchase-otherwise, where he buys with a warranty. But with submission there seems no valid reason for any such distinction. In yet another case (c) where the defendant sent to market some pigs suffering from typhoid fever and sold them "with all faults," and the purchaser put them with other pigs of his own which caught the fever and died, the House of Lords held that the purchaser could not recover damage for the non-disclosure; but they went expressly upon the ground that the sale was "with all faults," suggesting thereby, though they declined to decide the point, that in the absence of such a condition, the non-disclosure would have amounted to such a misrepresentation as would have founded an action of deceit (d). They apparently regarded the terms of the conditions of sale as putting the purchaser upon enquiry, and as amounting to an express negation of the representation of freedom from infectious disease which, but for that condition, would have been implied from the mere sale (e). It seems clear that where the relation between the parties is not Loan or gift of dangerous chattel. |