the property is a certain sum per year; for that might mean its annual return.1

Statements concerning the pecuniary condition of an individual also stand upon a different footing from statements of value; they may govern conduct. For example: The defendant says to the plaintiff, F is pecuniarily responsible. You can safely trust him for goods to the amount of £3,000.' This is a representation of fact which may govern conduct.2

Again, to come within the notice of the law, the representation, if not made by a lawyer to a layman, or by a man professing familiarity with the law to one not familiar with it, must, it seems, be more than a mere representation of what the law is. The reason of this has sometimes been said to be that all men are presumed to know the law; ignorantia legis neminem excusat.' But it may be doubted whether that is the true ground of the rule; if it were, misrepresentation of the law by one's legal counsel could hardly be made the foundation of any liability. A better reason appears to be that the law is understood by all men to be a special branch of learning; and hence what one layman may say to another will seldom have the effect to alter conduct. But whatever the ground, the rule appears to be treated as settled. For example: The defendant misrepresents the legal effect of a contract which he thereby induces the plaintiff to enter into with him, both parties being laymen. The defendant is not liable in damages for the loss inflicted upon the plaintiff.

1 See Smith v. Chadwick, 9 App. Cas. 187, ante, p. 55. Ellis v. Andrews, ut supra.

But see

Such repre

2 Pasley v. Freeman, 3 T. R. 51; Cases on Torts, 1. sentations must now in many states be proved by writing signed by the party to be charged.

3 Upton v. Tribilcock, 91 U. S. 45. See Lewis v. Jones, 4 B. & C. 506; Beattie v. Ebury, L. R. 7 Ch. 777, 804; Eaglesfield v. London

As the language above used, however, plainly implies, it is not broadly true that a misrepresentation of the law may not be ground for an action of deceit. If a person having superior means of knowing the law, and professing to know it, though not a lawyer and not professing to be, should knowingly give false information of it in order to influence the conduct of one ignorant of the same, there would (so far) be an actionable misrepresentation. For example: An immigrant, lately arrived from abroad, meets an old citizen, who professes familiarity with the land titles of the country, and proposes to sell land to him, to which he falsely assures the immigrant the title is good. This is a misrepresentation capable of sustaining an action.1

The proposition in the last paragraph may be generalized. In ordinary cases the representation must be such as to influence the conduct of a man of average intelligence; but the courts have not turned over the simple to be the prey of rogues. If a person is mentally deficient, or is but a child, the courts will protect him from designing men where they would leave others to their own folly.2

It is practically the same thing with saying that the statement or act should be sufficient to influence conduct, to say that it should be material; which latter is the usual way of stating the rule. But whichever way the rule is stated, it is not to be understood that the law will not take notice of the case if influences from other sources may have operated upon the plaintiff. The only question upon this point is whether the representation made by the defendant was adequate to influence, and did influence,

derry, 4 Ch. Div. 693, Jessel, M. R., explaining the nature of a repre sentation of law. And see West London Bank v. Kitson, 13 Q. B. Div. 360, 363, Bowen, L. J.

1 Moreland v. Atchison, 19 Texas, 303.

2 See post, p. 73.

the plaintiff, not whether it was the sole inducement to the action taken; if it was sufficient to influence him, and did influence him to some real extent, that is enough. The courts will not be astute to find that one of several inducements present was not adequate to the damage.1

So far of the definition.

man.

Further, it is for the plaintiff to show that the repre sentation was false. But a representation is false in contemplation of law as well as of morals if it is false in a plain, practical sense; if, that is to say, it would be apt to create a false impression upon the mind of the average For example: The prospectus of a company about to construct a railway describes the contract for the work as entered into at a price considered within the available capital of the company.' The fact is that there is a merely nominal capital of £500,000, and from this the sum of £50,000 is to be deducted for the purchase of the concession for making the railway, and the contract price for making it is £420,000. The representation is false; the term available capital' not being a true description of capital to be raised by borrowing.2

An example in contrast with the foregoing may be stated. A prospectus of a company formed for buying a certain business declares that the price of purchase is a stated sum, and that no 'promotion money' is to be paid to the directors of the company for making the purchase. In fact the sum paid for the business is somewhat less than the sum stated in the prospectus, and shares of the stock representing the difference are now transferred,

1 James v. Hodsden, 46 Vt. 127; Safford v. Grout, 120 Mass. 20; Jordan v. Pickett, 78 Ala. 331; Hale v. Philbrick, 47 Iowa, 217; McAleer v. Horsey, 35 Md. 439; Reynell v. Sprye, 1 De G. M. & G. 660. 2 Central Ry. Co. v. Kisch, L. R. 2 H. L. 99. Another good example, Smith v. Land & House Corp., 28 Ch. Div. 7;

Cases, 26.

part to the directors of the company who effected the purchase, which part is afterwards transferred to the company on complaint, and part to the solicitors in the transaction. This is not misrepresentation.1

3

The defendant cannot, then, escape liability by showing that the representation was, if literally taken, true, or true if taken in some forced or unnatural sense.2 So too the defendant cannot rely upon the truth of the actual language used, when that is but part of the whole state of facts, and what was suppressed would, had it been stated, have given to the language used a contrary effect. If the part suppressed would have made the part stated false, there is a false representation. For example: The defendant, desirous of buying stock of the plaintiff, a lady, of the value of which he knows that she is ignorant, tells her of a fact calculated to depreciate the value of the stock, but omits to disclose to her other facts within his knowledge which would have given correct information upon the subject. This is a breach of duty to the plaintiff. Again: The plaintiff being about to supply the defendant's son with goods on credit, asks the defendant if the son has property to the value of £300, as the son has asserted. The defendant answers in the affirmative, stating that he has advanced the sum to his son, but failing to state that his son has given his promissory note for the amount. This is a false representation, though true in a literal sense.5

1 Arkwright v. Newbold, 17 Ch. Div. 301. 'Nobody was ever lucky enough to sell a property without having some considerable deduction made out of the gross price, there being such persons as auctioneers and solicitors to be paid.' James, L. J.

2 Mizner v. Kussell, 29 Mich. 229.

8 Peek v. Gurney, L. R. 6 H. L. 377, 403, Lord Cairns; Central Ry. Co. v. Kisch, L. R. 2 H. L. 99, 113.

4 Mallory v. Leach, 35 Vt. 156.

5 Corbett v. Brown, 8 Bing. 33.

§ 3. OF DEFENDANT'S KNOWLEDGE OF FALSITY.

In order to entitle a plaintiff to recover damages for misrepresentation, it is necessary, by the more general current of authority, for him to prove that the defendant made the false representation fraudulently. A contract may, indeed, in many cases be rescinded or its enforcement successfully resisted, for an innocent misrepresentation, that is to say for a false representation believed to be true at the outset by the party who made it;1 but if damages are sought, fraud must be proved, whether at law or in equity.2

1

Fraud within the meaning of this rule, may be proved in one of three, and in some States in one of four ways, according to the nature of the case. It may be proved by showing (1) that the defendant made the representation with knowledge of its falsity; or (2) that he made it recklessly, without knowing whether it was true or false,3 or in some States (3) that he made it positively as, or apparently as, of his own knowledge, when he only believed it to

1 Arkwright v. Newbold, 17 Ch. Div. 301; Redgrave v. Hurd, 20 Ch. Div. 1; Blackman v. Johnson, 35 Ala. 252; Sledge v. Scott, 56 Ala. 202.

2 Case v. Boughton, 11 Wend. 106, 108; Morgan v. Skiddy, 62 N. Y. 319; Cragie v. Hadley, 99 N. Y. 131; Code v. Cassiday, 138 Mass. 437; Bowker v. Delong, 141 Mass. 315; Mahurin v. Harding, 28 N. H. 128; Holdom v. Ayer, 110 Ill. 448; Lamm v. Port Deposit Assoc., 42 Md. 233; Dunn v. White, 63 Mo. 181; Collins v. Jackson, 54 Mich. 186; Spangler v. Chapman, 62 Iowa, 144; Sims v. Eiland, 56 Miss. 83 and 607; Derry v. Peek, 14 App. Cas. 237, reversing 37 Ch. Div. 541; Joliffe v. Baker, 11 Q. B. D. 255; Arkwright v. Newbold, 17 Ch. Div. 301, 320; Redgrave v. Hurd, 20 Ch. Div. 1; Reese Mining Co. v. Smith, L. R. 4 H. L. 64; Childers v. Wooler, 2 El. & E. 287; Evans v. Edmonds, 13 C. B. 777, 786. But see Glaspie v. Keater, 5 C. C. A. 474; Lamberton v. Dunham, 30 Atl. 716 (Penn.).

Proving the defendant's knowledge of the falsity of his representation is often called proving the 'scienter,' a term of the old common law pleading.

8 Negligence is not enough. Le Lievre v. Gould, 1893, 1 Q. B. 491.