The defendant, a manufacturer and vendor of tobacco, knowingly uses damaged tobacco in the manufacture, and intentionally uses boxes of green lumber; and while the tobacco is being made up he exhibits to the plaintiff from time to time, in order to mislead him, specimens of tobacco as of the kind he (the defendant) is supplying the plaintiff, when in fact the defendant is supplying him with a different and inferior kind. Notwithstanding acceptance of the goods and payment for them, the plaintiff is entitled to damages against the defendant.1

§ 5. OF THE INTENTION THAT THE REPRESENTATION

SHOULD BE ACTED UPON.

In regard to that element of the breach of duty under consideration which requires the plaintiff to prove that the defendant intended his representation to be acted upon, it is to be observed that, while the rule is probably inflexible, its force appears chiefly in those cases in which the deception was practised with reference to a negotiation with a third person, and not with the defendant. In cases

of that kind, an instance of which is found in false representations to the plaintiff of the solvency of a third person, it is plain that the transaction with such third person, though shown to have been caused by the defendant's false representation, affords no evidence of an intention in the defendant that the representation should be acted upon by the plaintiff. It would be perfectly consistent with mere evidence that the plaintiff acted upon the defendant's misrepresentation in a transaction with a third person, that the defendant, though he knew the falsity of his representation, did not know, and had no reason to

1 Mc Aroy v. Wright, 25 Ind. 22. An act does not amount to the waiver of a wrong unless it be done with knowledge of the wrong. 2 Pasley v. Freeman, 3 T. R. 51, ante, p. 27.

suppose, that the plaintiff would act upon it. The representation might, for all this, have been a mere idle falsehood, such as would not justify any one in acting upon it.

It follows that where a party complains of false representations, whereby he was caused to suffer damage in a transaction with some third person, it devolves upon him to give express evidence either that the defendant intended that he should act upon the representation, or that the plaintiff was justified in inferring such intention, — it matters not which;1 and that it is not enough to prove that the misrepresentation was made with knowledge of its falsity.2

When, however, the effect of the false representation was to bring the plaintiff into a business transaction with the defendant, the case is quite different. Proof of such a fact shows at once the intent of the defendant to induce the plaintiff to act upon the representation; and it follows that no evidence need be offered of an intention to that effect, or of reasonable ground to suppose an intention. The principle appears most frequently in cases of sales; the rule of law being, that if the plaintiff, the purchaser, establish the fact that the defendant, the vendor, knew that his representation was false, it is not necessary for the plaintiff to give further evidence to show that the defendant intended to induce the plaintiff to buy. For example: The defendant sells a horse to the plaintiff representing that it is sound, when he knows that it is not. Further evidence of intention is not necessary.*

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1 See Freeman v. Cooke, 2 Ex. 654; Cornish v. Abington, 4 H. & N. 549.

2 See Pasley v. Freeman, 3 T. R. 51; s. c. L. C. Torts, 1.

3 Collins v. Denison, 12 Met. 549; Claflin v. Commonwealth Ins. Co., 110 U. S. 81; Johnson v. Wallower, 15 Minn. 474; s. c. 18 Minn. 288; Foster v. Charles, 6 Bing. 396; s. c. 7 Bing. 105; Polhill v. Walter, 3 B. & Ad. 114.

Collins v. Denison, supra.

Indeed, it is probably not necessary in any case, if the cause of action is carefully stated, that it should appear that the defendant intended to injure the plaintiff. It has already been stated that a person honestly professing to have authority to act for another is liable as for fraud for the damages sustained, if he has not the authority.1 In such cases it is obvious that the representation may have been made for the benefit of the plaintiff." So too in cases in which the defendant has made the misrepresentation with knowledge of its falsity, it is plain that he may really have desired and expected that the plaintiff would derive a benefit from the transaction.

§ 6. OF ACTING UPON THE REPRESENTATION.

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It is fundamental that the defendant's representation should have been acted upon by the plaintiff, and acted upon to his injury, to enable him to maintain an action for the alleged breach of duty. Indeed, fraudulent conduct or dishonesty of purpose, however explicit, will not afford a cause of action unless shown to be the very ground upon which the plaintiff acted to his damage.* The defendant must have caused the damage.

So strong is the rule upon this subject that it is deemed necessary to this action that the damage as well as the acting upon the representation must already have been suffered before the bringing of the suit, and that it is not sufficient that it may occur. For example: The defendant induces the plaintiff to indorse a promissory note before its maturity by means of false and fraudulent rep

1 Ante, p. 36.

2 See Polhill v. Walter, 3 B. & Ad. 114.

Pasley v. Freeman, 3 T. R. 51; Smith v. Chadwick, 9 App. Cas 187; Freeman v. Venner, 120 Mass. 424.

Rutherford v. Williams, 42 Mo. 18.

resentations. An action therefor cannot be maintained before the plaintiff has been compelled to pay the note.1

A person who has been prevented from effecting an attachment upon property by the fraudulent representations of the owner or of his agent is deemed to have suffered no legal damage thereby, though subsequently another creditor should attach the whole property of the debtor and sell it upon execution to satisfy his own debt." The person thus deceived, having acquired no lien upon or right in the property, cannot lose any by reason of the deceit. The most that can be said of such a case, it has been observed, is that the party intended to attach the property, and that this intention has been frustrated; and it could not be certainly known that that intention would have been carried out. If the attachment had been already levied and was then lost through the deceit, the rule would of course be different.5

It must appear, moreover, that the plaintiff was entitled to act upon the representation; and this will depend upon the intention, or the reasonably presumed intention, of the defendant. The representation may have been intended for (1) one particular individual only (in which case he alone is entitled to act upon it), or (2) it may have been intended for any one of a class, or (3) for any one of the public, or (4) it may have been made to one person to be communicated by him to another. Any one so intended, who has acted upon the misrepresentation to his damage, will be entitled to redress for any damage sustained by acting upon the representation. For example:

1 Freeman v. Venner, 120 Mass. 424.

2 Bradley v. Fuller, 118 Mass. 239. But see Kelsey v. Murphy, 26 Penn. St. 78.

3 Id.; Lamb v. Stone, 11 Pick. 527.

4 Bradley v. Fuller, supra.

5 Id.

• Richardson v. Silvester, L. R. 9 Q. B. 34; Swift v. Winterbotham, L. R. 8 Q. B. 244; Peek v. Gurney, Law R. 6 H. L. 377.

The defendants put forth a prospectus to the public, containing false representations, for the purpose of selling shares of stock in their company. The plaintiff, as one of the public, may act upon the representations, and, having bought stock accordingly, recover damages for the loss sustained thereby.1

§ 7. OF QUASI-DECEIT.

We come now to certain cases which may be called cases of quasi-deceit. They vary somewhat in legal aspect from deceit proper as presented in the foregoing pages, and yet they have enough in common with that subject to be treated as kindred to it. The subjects referred to are (1) the simulation of another's quasi-trademark 2 or business sign, and (2) disparaging statements of another's property, otherwise called slander of title.

By quasi-trademark is meant a mark or device not registered according to statute and not a subject of property in the plaintiff. The action therefore is not based upon any infringement of a property right; it is based upon simulation, upon deception practised by the defendant

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on the public to the damage of the plaintiff. In order to sustain an action for damages based upon such a case, it must appear (1) that the defendant knew of the existence of the plaintiff's mark when he committed the alleged wrong, (2) that he intended to palm off the goods as the goods of the plaintiff, or to represent that

1 Andrews v. Mockford, 1896, 1 Q. B., 372, distinguishing Peek v. Gurney, L. R. 6 H. L. 377. See also New York R. Co. v. Schuyler, 34 N. Y. 30; Bruff v. Mali, 36 N. Y. 200, 205.

2 In the case of a legal trademark the wrong would be a violation of a property right as well as deceit; that case then need not be considered in a chapter on deceit. In considering cases of quasi-trade. marks we have cases of deceit only for our subject.

See Reddaway v. Banham, 1896, A. C. 199; Ratcliffe v. Evans, 1892, 2 Q. B. 524, 528, as to damage.