purchase. But in each of those cases a different opinion was expressed by other judges, and in Hennequin v. Naylor, (24 N. Y., 139), the opinion of JAMES, J., which appears to have been concurred in by the whole court, is explicit to the contrary. So is King v. Phillips, 8 Bosw., 603. The commissioners incline to the latter view as more sound (see also Brown v. Montgomery, 20 N. Y., 287).

▲ fraudulent representation made by C. to A., with intent to induce A. to enter into a contract with B., would not, it is clear, enable A. to rescind the contract, if B. had no part in or knowledge of the fraud (Holbrook v. Wilson, 4 Bosw., 64), at least, on the ground of fraud. But if C. was the agent of B., or even if he acted in concert with him, or in short if B. in any way connived at the fraud, A. might rescind (see Cassard v. Hinman, 6 Bosw., 8).

For the purpose of avoiding a contract, it is not necessary that the fraud should have been committed with an intent to injure the party deceived. Every man has a right to decide for himself whether he will enter into a contract or not, and no one has a right to deceive him even for his own good. The cases in which the question of injury is discussed are direct actions for deceit, in which, of course, if no damage has been suffered, none can be recovered. But a fraudulent intent is nevertheless essential to constitute actual fraud. Even an untrue statement is not necessarily a fraud, for it may be made and accepted in jest. Much more is some fraudulent intent necessary to be shown in cases of mere concealment.

An intent to deceive, whenever carried out, constitutes a fraud, even though there may not have been an intent to induce the party deceived to contract. Thus, if A. should, on Monday, out of mere mischief or love of deception, tell B. that Congress had just repealed the duty on paper, and should sustain his assertion by showing public news to the same effect, which he however knows to be erroneous, and should, on Tuesday, purchase paper of B., on terms to which B. was induced to assent, by reason of the falsehood of the day before, B. would clearly have a right to rescind, even though A. did not know or suppose that B. was influenced by his false statements.

The assertion of a certain thing as a matter of fact, when in reality the asserter knows nothing about the matter, may often be a fraud, without any clear intention to deceive. In such cases, it is more satisfactory to fix upon the intent to induce consent as the test of fraud.

Constructive fraud, what.

The word "suggestion" is used, instead of "assertion," because even a hint, or a true report of what others have untruly said, is a fraud, when conveying an impression which the party knows to be false, and made for that purpose.

Haight v. Hayt, 19 N. Y., 464; White v. Merritt, 7 id.,

352.

Bennett v. Judson, 21 N. Y., 238; Craig v. Ward, 30
Barb., 377; Evans v. Edmonds, 13 C. B., 776.

10 Nichols v. Michael, 23 N. Y., 264; Hennequin v. Nay-
lor, 24 N. Y., 139; Hall v. Naylor, 18 id., 588;
Addington v. Allen, 7 Wend., 20; Lee v. Jones, 14
C. B. [N. S.], 386; Bank of Republic v. Baxter, 31
Verm., 101; Paddock v. Strobridge, 29 id., 470;
Martin v. Morgan, 1 Brod. & B., 289; Drummond v.
Tracy, 6 Jur. [N. S.], 369; see Squire v. Whitten, 1
H. of L. Cas., 333; Dolman v. Nokes, 22 Beav., 402;
Broderick v. Broderick, 1 P. Wms., 239.

"It has been held that a mere promise, though made
with an intention not to perform it, and for the pur-
pose of misleading a party to his injury, is not such a
fraud as would sustain an action for deceit (Farring-
ton v. Bullard, 40 Barb., 512; Gallagher v. Brunel,
Cow., 346; Fisher v. New York C. P., 18 Wend.,
608). It is not such a fraud as will sustain an ir-
dictment for false pretenses (Ranney v. People, 22
N. Y., 413); but it seems to the commissioners to
stand upon the same footing with a purchase of
goods with intent not to pay, which has been re-
peatedly held to be a fraud (Hennequin v. Naylor,
24 N. Y., 139; Nichols v. Michael, 23 id., 264; King
v. Phillips, 8 Bosw., 603; see especially Bigelow v.
Heaton, 6 Hill, 43). In Seaman v. Low (4 Bosw.,
337), false representations as to what the seller was
about to do, were held sufficient to avoid a sale.

$758. Constructive fraud consists:

1. In any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or any one claiming uuder him, by misleading another to his prejudice, or to the prejudice of any one claiming under him ;1 or,

2. In any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.2

1 Bulkley v. Wilford, 2 Clark & Fin., 102, 177, 181.

2 Conkey v. Bond, 34 Barb., 276; People v. Kelly, 35 id

444.

$759. Actual fraud is always a question of fact.
1 Dunham v. Waterman, 17 N. Y., 21; Wilson v. Forsyth,
24 Barb., 105.

22 R. S., 137.

$760. Undue influence consists:

1. In the use, by one in whom a confidence is reposed by another,' or who holds a real' or apparent3 authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him ;*

2. In taking an unfair advantage of another's weakness of mind; or,

3. In taking a grossly oppressive and unfair advantage of another's necessities or distress."

1 It may safely be stated as a general rule of equity, that
no one can be permitted to make any selfish use of
a personal confidence reposed in him. This rule
is illustrated in a variety of forms, and sustained by
numerous authorities, in the Title on TRUSTS. But it
is also proper to be recognized in this place. It is
not necessary, in such cases, to show that there was
any deception practiced. It is sufficient to show
that the confidence reposed was taken advantage of
for purposes of gain (see Sears v. Shafer, 6 N. Y.,
268, 272; Bergen v. Udall, 31 Barb., 9; Brock v.
Barnes, 40 Barb., 521; Baker v. Bradley, 7 De G., M.
& G., 597; Tyrrell v. Bank of London, 10 H. of L.
Cas., 26; Dent v. Bennett, 4 Myl. & Cr., 269; 7
Sim., 539; Broun v. Kennedy, 9 Jur. [N. S.], 1163;
Davies v. Davies, id., 1002).

.

A parent may not acquire anything from his child by
the slightest exercise of parental authority (Bury v.
Oppenheim, 26 Beav., 594; Bergen v. Udall, 31 Barb.,
9; Taylor v. Taylor, 8 How. [U. S.], 183; Baker v.
Bradley, 7 De G., M. & G., 597; see Brown v. Ken-
nedy, 9 Jur. [N. S.], 1163; Davies v. Davies, id.,
1002); and the same rule applies to any one stand-
ing in the relation of a parent (Archer v. Hudson, 7
Beav., 551), as an uncle with whom his niece lived
for a number of years (id.), or an, elder sister, who
had a great ascendancy over the mind of the grantor
(Harvey v. Mount, 8 Beav., 439). So a deed from a
lady to a clergyman whom she believed to be inspired,
was set aside (Nottidge v. Prince, 2 Giff., 246).
'Where agents, appointed by the comptroller to investi-

gate the condition of an insurance company which

Mistake, what..

had applied to him, pursuant to statute, for leave to do business, after they had made their report, and had in fact no further power, insisted upon the pay. ment of $300 as fees, threatening to revoke their report if the fees were not paid, it was held that the money paid under such a threat might be recovered back (Am. Ex. Fire Ins. Co. v. Britton, 8 Bosw., 148; see Steele v. Williams, 8 Exch., 625; Dew v. Parsons, 2 B. & Ald., 562; Morgan v. Palmer, 2 B. & C., 729).

This is all that is necessary. Nothing more than a
perverted use of the power of the party need be
shown.

Longmate v. Ledger, 6 Jur. [N. S.], 481; Blackford v.
Christian, 1 Knapp, 77; see Tracy v. Sacket, 1
Ohio St., 58; Rippy v. Grant, 4 Ired. Eq., 443;
Whiteburn v. Hines, 1 Munf., 557; Dunn v. Cham-
bers, Barb., 376.

• Breck v. Cole, 4 Sandf., 88; Bowes v. Heaps, 3 Ves. &
B., 119; Wood v. Abrey, 3 Madd., 423; Gould v. Oke-
den, 4 Bro. P. C., 198; see Cockshot v. Bennet, 2
T. R., 763; Barnardiston v. Lingood, 2 Atk., 133;
Thornhill v. Evans, id., 330; Walmsley v. Booth, id.,
28, 29; Berney v. Pitt, 2 Vern., 14; Nott v. Hill, id.,
27; Wiseman v. Beake, id., 121; Roche v. O'Brien,
1 Ball & B., 337, 359; Bromley v. Smith, 26 Beav.,
664; 5 Jur. (N. S.), 837; Lamplugh v. Cox, Dick.,
411; Heron v. Heron, 2 Atk., 160. These cases
seem to support this view. They are generally
classed under the head of fraud (see Story Eq. Jur.,
S$ 331-337); but the principle on which they depend
is not a mere question of fraud.

$ 761. Mistake may be either of fact or of law.

As to mistake of fact there is no question. Mistake of law has been often declared to be no ground for relief at law or in equity (see Champlin v. Laytin, 18 Wend, 417; Storrs v. Parker, 6 Johns. Ch., 166; Lyon v. Richmond, 2 id., 61; Kent v. Manchester, 29 Barb., 595; Story Eq. Jur., §§ 111-139). But the contrary view has been taken by judges of high authority (see Champlin v. Laytin, 18 Wend., 422; Many v. Beekman Iron Co., 9 Paige, 188; Stone v. Godfrey, 5 De G., M. & G., 90; Broughton v. Hutt, 3 De G. & J., 501; Evants v. Strode, 11 Ohio, 480. See also Wheeler v. Smith, 9 How. [U. S.], 55). The commissioners think that the latter cases are better considered. No doubt relief upon this ground must be granted with extreme caution, and in only a limited class of cases; but this by no means proves that such relief should never be granted.

fact.

$762. Mistake of fact is a mistake, not caused by Mistake of the neglect of a legal duty' on the part of the person making the mistake, and consisting in:

1. An unconscious2 ignorance3 or forgetfulness of a fact past or present, material to the contract; or,

2. Belief in the present existence of a thing mate-
rial to the contract, which does not exist," or in the
past existence of such a thing, which has not existed.
1 1U. S. Bank v. Bank of Georgia, 10 Wheat., 343.

2 McDaniels v. Bank of Rutland, 29 Vt., 238; Elwell v.
Chamberlain, 4 Bosw., 320; Kelly v. Solari, 9 M. &
W., 54.

'Briggs v. Vanderbilt, 19 Barb., 222, 239; Bell v. Gardi

ner, 4 M. & G., 11; 4 Scott N. R., 621.

Kelly v. Solari, 9 M. & W., 54; Lucas v. Worswick, 1

Moo. & Rob., 293. This definition seems to cover all
the cases of accident and surprise against which relief
can be had.

Willan v. Willan, 16 Ves., 72; McCarthy v. De Caix,
2 Russ. & M., 614; Durkin v. Cranston, 7 Johns.,

442.

Huthacher v. Harris' Adm'r, 38 Penn. St., 491.

'Reel v. Hicks, 25 N. Y., 289; Kip v. Monroe, 29 Barb.,
579; Briggs v. Vanderbilt, 19 id., 239; Gardner v.
Mayor, &c., of Troy, 26 id., 423; Wheadon v. Olds, 20
Wend., 174; Mowatt v. Wright, 1 id., 360; Allen v.
Mayor, &c., of N. Y., 4 E. D. Smith, 404; Hitchcock
v. Giddings, 4 Price, 135; Dan., 1; Hastie v. Couturier,
9 Exch., 102; affirmed 5 H. of L. Cas., 673; Strick-
land v. Turner, 7 Exch., 208. See Belknap v. Sealey,
14 N. Y., 143; Martin v. M'Cormick, 8 N. Y., 335;
Ketchum v. Bank of Commerce, 19 N. Y., 502.
See Martin v. McCormick, 8 N. Y., 335.

The dicta contained in some cases to the effect that a
mistake in respect of matters as to which the party
had "means of knowledge" does not avoid a contract
(see Mutual Life Ins. Co. v. Wager, 27 Barb., 354;
Clarke v. Dutcher, 9 Cow., 674; Milnes v. Duncan, 6
B. & C., 716), are not sustained by the decisions (see
Allen v. Mayor, &c., of N. Y., 4 E. D. Smith, 404;
Kelly v. Solari, 9 M. & W., 54), and have been finally
overruled (Townsend v. Crowdy, 8 C. B. [N. S.], 477;
Bell v. Gardiner, 4 M. & G., 11; Dails v. Lloyd, 12 Q.
B., 531).

$763. Mistake of law constitutes a mistake, within Mistake of the meaning of this article, only when it arises from:

law