in the last section, where the reparation took place after the plaintiff had made his election to rescind or to affirm.

If, however, at the time the action for deceit is brought the plaintiff is ignorant that reparation has been made, he should not be held to have consented that such reparation be considered in mitigation of damages. Knowledge is an essential element of ratification.3 33 Acts done in ignorance of the facts do not ratify. The election to affirm the fraud and seek compensation in money may well have been made in the expectation that such compensation would be paid in money. Conceivably the plaintiff would have rescinded if compensation were to be made in specie. Any consent to receive reparation in specie is lacking. In the absence of such consent the plaintiff should not be held liable to account for a benefit conferred by a volunteer without notice to him. The knowledge of and consent to the receipt of the benefit, which alone can raise the obligation to account for it, are absent.34 If the wrongdoer desires that the reparation shall operate in mitigation of damages he need only inform the plaintiff and leave the plaintiff to determine whether he will accept reparation in that form or rescind. As the wrongdoer has not chosen to inform the plaintiff so that the plaintiff can decide intelligently in the full light of all the facts, he cannot justly complain, if he is treated as a volunteer to whom compensation for specific reparation is denied.

It may perhaps be urged that this view is inconsistent with Medbury v. Watson,35 and similar cases, 36 in which it was held that a resale by the plaintiff, before action brought was neither a bar to an action of deceit nor available in mitigation of damages. Such is not the case. In Medbury v. Watson the wrongdoer had not repaired the wrong. He had done nothing on which any assent of the plaintiff could operate. Non constat

"Cohen v. Jackson, 210 Mass. 328; Combs v. Scott, 12 Allen (Mass.) 493; Pence v. Langdon, 99 U. S. 578; Dickson v. Patterson, 160 U. S. 584; Valley v. Ostheimer, 159 Fed. 655 (C. C. A.); Manning v. Albee, 11 Allen (Mass.) 520. See also ante, note 12.

that if the false representations had been made good, the plaintiff would not have obtained a far larger price than he did.37 The plaintiff by affirming the transaction had become absolute master of the property purchased. It was no concern of the wrongdoer whether the plaintiff sold the property or gave it away. The resale by the plaintiff was not a benefit conferred by the defendant for which the defendant could claim compensation.38 This of itself distinguishes Medbury v. Watson and cases like it.

IV.

What is the result where the representation is false when made, but is made good before it is acted on? If the transaction has been wholly executed can the party who acts on the representation either rescind or recover damages? If the transaction is an agreement which still remains executory is the naked misrepresentation a defense? In the situations already considered the false representation was acted on while it was still untrue. Here it has become true before any action is taken. Is this a real distinction?

A naked false representation is not actionable unless it cause damage.39 If it relate to an immaterial matter, 40 or if it be not relied on 41 or if action in reliance thereon cause no legal damage,12 no action for deceit will lie. So also, if the representation is not what the law deems to be a false and fraudulent representation, action thereon by the plaintiff to his dam

"Brown v. Bigelow, 10 Allen (Mass.) 242.

28 So in Blanchard v. Ellis, 1 Gray (Mass.) 242, the purchase of the outstanding paramount title by the defendant, without conveyance by the defendant to the plaintiff, was not a benefit for which the plaintiff could be held to account.

"Lamb v. Stone, 11 Pick. (Mass.) 526; Wellington v. Small, 3 Cush. (Mass.) 145; Randall v. Hazelton, 12 Allen (Mass.) 412; Bradley v. Fuller, 118 Mass. 239; Dudley v. Briggs, 141 Mass. 582; Graham v. Peale, 173 Fed. 9 (C. C. A.).

"Hedden v. Griffin, 136 Mass. 229, 231; Dawe v. Morris, 149 Mass. 188; Palmer v. Bill, 85 Me. 352; Blair v. Buttulph, 72 Ia. 31, 33; Clark v. Everhart, 63 Pa. St. 347. 349: Stone v. Robie, 66 Ut. 245. 247.

"Ming v. Woolfolk, 116 U. S. 599; Lilienthal v. Suffolk Brg. Co., 154 Mass. 185, 188.

age will not enable him to maintain deceit. In this class fall expressions of opinion,13 "sellers' talk," and prophecies as to the future. In other words, fraud without damage, or damage without fraud will not sustain an action of deceit.

While the repre

These principles seem decisive in the case where the representation is made good before it is acted on. In such a case the elements of actionable fraud never coexist. sentation remains untrue the plaintiff does not act thereon to his damage. When the plaintiff subsequently acts the fraudulent element of the representation has ceased to exist. If the plaintiff sustain damage, that damage is in no just sense a consequence of the prior falsity of the representation. Under such circumstances the defendant, by making his representation good before it is acted on prevents a cause of action from arising. This differs radically from invoking his subsequent reparation to defeat or mitigate a cause of action which has already arisen. Since no cause of action has arisen, the plaintiff should neither recover damages,46 nor be permitted to rescind.

47

In Lams v. Fish, the plaintiff sued in deceit upon the ground that the defendant, by falsely representing that the G. Company was the owner of a certain lease induced the plaintiff to purchase shares of its stock. The proof showed that when the representation was made the G. Company was not the owner of the lease, but that it became so shortly afterward. In holding that the plaintiff could not recover, the court said, by Kalisch, J.:

"The plaintiff's proof established that the Gem Dredging Company was not the owner of the lease at the time when the representation to that effect was made by the defendant, but that it did acquire the ownership thereof shortly afterwards.

189.

"Tryon v. Whitmarsh, 1 Met. (Mass.) 1; Belcher v. Costello, 122 Mass.

"Densing v. Darling. 148 Mass. 504.

“Dawe v. Morris, 149 Mass. 188; Knowlton v. Keenan, 146 Mass. 186. "Lams v. Fish, 86 N. J. L. 321, 90 Atl. 1105 (N. J. Er. & Ap.); Ball v. Farley, 81 Ala. 288.

"86 N. J. L. 321, 90 Atl. 1105 (N. J. Er. & Ap.).

Under Byard v. Holmes, 34 N. J. L. 296,48 this representation was immaterial. Since the Gem Dredging Company did acquire the ownership of the lease it could make no difference in the value of the plaintiff's stock whether the company owned the lease on the day stated or not.'

It does not clearly appear from the facts in this case whether the representation was made good just before or just after the plaintiff was induced to purchase his stock. The statement that the representation had become immaterial lends some color to the supposition that it was made good before it was acted on. Even if it was made good shortly after it was acted on the case may still be supported upon the supposition that the action was brought after the plaintiff knew of the reparation. Moreover, since the plaintiff failed to prove any damage the case may be supported on that ground as well. In view of these uncertainties the case is not perhaps a very persuasive authority, but in view of the scarcity of decisions, it seems wise to include it.

One point in Lams v. Fish, however, is worth comment. It is said in that case that if the representation was made good it became "immaterial." This suggestion seems unsound. The materiality of a representation does not depend on its truth or falsity. It depends on whether it was an efficient inducement to the plaintiff's act.49 This is a question of fact dependent upon the operation of the representation upon the plaintiff's mind. On the other hand, if the representation be true at the time it moves the plaintiff to act, the question whether it was false when made may have ceased to be relevant. But in this case, it is the previous falsity of the representation which has ceased to be material, not the representation itself. This distinction was apparently overlooked in Lams v. Fish. It diminishes the weight to be given to the case.

A somewhat different question is presented by the case

"This case is not in point. It simply decided that a certain declaration was too uncertain to be the basis of relief.

"Safford v. Grout, 120 Mass. 20; Hindeman v. First Nat. Bank, 112 Fed. 931, 945 (C. C. A.); Edginton v. Fitzmaurice, 29 Ch. D. 459.

where a party who has made a false representation, but made it good before it is acted on, invokes the aid of the court to enforce an executory bargain grounded on that representation. On this point the writer has found but a single dictum,50 by Holmes, J., who said:

"The defendant argues that the plaintiff has suffered nothing because the statement was made good before it was acted on. We are not prepared to say that the fact that one party to a transaction, A, has been guilty of a material fraud, is purged of its effect if the representation is made good before it is acted on by the other party, B. There would be much force in the argument that, if B had known of A's fraud before the bargain was complete, he would not have been likely to complete it whatever the existing facts. People generally break off their dealings with people who are trying to cheat them. The fact that A has tried to cheat B is material, it may be said, because it offers what according to common experience would be a strong motive for not proceeding further."

There is considerable force in this suggestion. On the other hand, it would scarcely be a defence to prove that in prior transactions with other persons A had been a scamp and had committed fraud, larceny or embezzlement. It may well be that if B had known these facts before the bargain was completed he would have immediately broken off relations and declined to deal farther. But A's general bad character, even though concealed, would scarcely taint a transaction otherwise free from fraud, simply because B would probably decline to deal with A if he knew of A's previous rascality. It may be, however, that where A has tried to cheat B in this particular transaction the rascality is an indelible ingredient of this particular bargain, even though B, for reason of his own, changes his mind and makes his representation good before it is acted on. If the bargain

Reeve v. Dennett, 145 Mass. 23, 30, in which it was held that where defendant had falsely represented that he owned certain land, but before that representation was acted on, purchased the land on mortgage, it could not be said that a finding that the representation had not been made good was unwarranted by the evidence. Perhaps the dicta in Sonnesyn v. Akin, 14 N. D. 248, 104 N. W. 1026, look the other way.