have been carelessly made, or even in perfect innocence: and yet the fact that the statement was false may render it unconscionable in the person who made the statement to enforce the contract which it produced. § 628. (1) The first point calls for little remark. It is obvious that, to constitute misrepresentation, there must be a statement, and that statement must be untrue. § 629. Mere silence is, generally speaking, neither misrepresentation nor fraud; and, as will be shown in the next chapter, it is quite open to a vendor or purchaser to maintain such silence, though its effect may be that the other party acts under a misapprehension. § 630. The statement must be untrue: and in determining this question, it will not suffice to show that the language used might admit of a meaning which would make it correct. (d) It must, it is conceived, be held to be untrue wherever it is found that the speaker intended or expected the hearer to accept it in a sense in which it would not be true.' (d) Clarke v. Dickson, 6 C. B. (N. S.), 453. be a misrepresentation, where it is known that it is calculated to mislead a party; as, for example, where it was asserted that there was plenty of water upon the property, which was in fact true at the time, but the supply depended not upon natural supply but upon artificial works which might fail. Kerr on Fraud and Mis., 92; Edwards v. Wickwar, L. R. 1 Eq., 68; Colely v. Gadsden, 15 W. R., 1185; Ross v. Estates Ins. Co., L. R. 3 Eq., 135; Chester v. Spayo,. 16 W. R., 576; New Brunswick R. R. Co. v. Congbeare, 9 H. of Lds., 711; Legge v. Crocker, 1 Ba. & Be., 506. 1 Rule with regard to facts known to vendor.] All the incidents to which the property is subject must be laid before the purchaser by the vendor, and it must be in language intelligible to a common understanding. The purchaser must not understand ambiguous terms at his peril. Conyers v. Ennis, 2 Mass., 236; Sheard v. Venables, 36 L. J. Ch., 922; Drysdale v. Mace, 5 De G. M. & G., 107; Swaisland v. Dearsley, 29 Beav., 430. The concealment must have been such as to have prevented the other party, had the true facts been known, from entering into the contract. Haywood v. Cope, 25 Beav., 140; Young v. Bumpass, Freem. (Miss.), Ch., 241; Jonzin v. Toulmin, 9 Ala., 352; Baglebole v. Walters, 3 Camp., 154; Schneider v. Heath, 3 id., 506; Pearett v. Shambhut, 5 Miss., 323; Steele v. Kinkle, 3 Ala., 352. Material facts concealed.] The purchaser, at the time of making the bargain, was ignorant of a substantial defect with respect to the nature of the property, and in regard to which he was not put upon inquiry. Held, that where the defect was substantial, and referred to the nature, character, situation, extent or quality of the property, specific performance would not be decreed. Ellicott v. White, 43 Md., 145. The words "more or less."] These words cannot be a cover for misrepresentation. King v Knapp, 59 N. Y., 462. Part of premises purchased fraudulently omitted from deed.] A portion of the estate purchased was fraudulently omitted from the deed given, and the pur chaser, being deceived, paid the price, and went into possession under the deed § 631. (2) The statement which is relied on as a misrepresentation must have been made by a party to the contract or his agent, and not by a stranger. "If," said Lord Romilly, M. R., "a third person, by representing to A. that it will be highly for his benefit, and by false representations induces him to enter into a contract with B., but B. makes no false representation, and is neither party or privy to any such, then the contract is valid, and stands good in this court. But the person who, by false representations, induced the other to enter into that contract is liable, in an action, to make good to the person he has misled the damage he has sustained by acting on the misrepresentation made to him."(e) Duranty's Case (ƒ) and Ex parte Worth (g) brings this principle into clear relief; for in those cases it has been held that if directors, as agents of the company, issue a false report, and third persons, influenced by this report, contract with the company for shares, the contract may be avoided; but that if the same third persons contract with individual shareholders for shares, the contract cannot be avoided. § 632. It is, of course, enough that the agent was appointed to bring about the contract for the principal, and that he made the misrepresentation. It is not needful that he should have been appointed the agent to make the misrepresentation. (h)' Thus, in the cases in which con (e) In Duranty's Case, 26 Beav., 270. (f) 26 Beav., 268. (g) 4 Drew., 529. (h) Barwick v. English Joint-Stock Bank, L. R. 2 Ex., 259. (i) See, e. g., Reese River Silver Mining Co. v. Smith, L. R. 4 H. L., 64; cf. Gibson's Case, 2 De G. & J., 275, 283. Held, that he was not bound to know that the description in the contract and the deed, did not embrace all the land orally agreed to be sold, and that the statute of frauds was no bar to an action for the specific performance. Beardsley v. Duntley, 69 N. Y., 577; Goodenough v. Curtis, 18 Mich., 298; Stewart v. Beard, 23 Iowa, 477. Rescission of the contract for fraudulent concealment.] Where a party, by fraudulent concealment, or willful perversion of material facts, induces another to enter into a contract, the latter will be entitled to a rescission of such contract. Pollard v. Rogers, 4 Cal., 239; McNiel v. Baird, 6 Munf., 316; Snelson v. Franklin, 6 id., 210; Rawdon v. Blatchford, 1 Sandf.'s Ch., 344. Liability of principle for agent's misrepresentations.] The acts of an authorized agent who, by fraud and false representations, affects a sale of property, even in a case where the fraudulent acts were without the authority or even knowledge of the principle makes such principle legally accountable; it is as if he had done the act himself. New Brunswick R. R. Co. v. Cony beare, 9 H. of Lds., 714, 726; Barwick v. English Joint-Stock B'k, L. R. 2 Ex, 265; Bartlett v. Salmon, 6 De G. M. & G., 39; Bristow v. Whitmore, 9 H. of Lds., 418; Wheelton v. Hardisty, 8 E. & B, 270; Crump v. United States Mining Co., 7 Gratt., 352; Hongh v. Richardson, 3 Story, 689; Fitzsimmons v. Joslin, 21 Vt., 129; Henderson v. R. R. Co., 17 Tex., 560; contra, Cornfoot v. Fowke, 6 M. & W., 358. tracts have been rescinded against companies, the representation have been made by the directors, who, of course, have no express authority to make a misrepresentation. (i) § 633. (3) As to the state of mind of the person making the statement as to its truth or falsehood; it is to be observed that though there can be no fraud without the knowledge of the untruth of the statement, yet there may well be misrepresentation, i. e., the representation may be erroneous, though not known to be so. § 634. It would lead us over a wide field to consider how far knowledge of the error is essential in actions to rescind a contract, or in actions for deceit, or to support a defense on the ground of fraud or misrepresentation in answer to an action on the contract. (j) But it is conceived to be clear that, in equity, a false statement, though believed to be true, if made with a view to a contract by a party to the contract, is a good defense to an action for specific performance. In Wall v. Stubbs, (k) Plumer, V. C., observed, "that whether the misrepresentation be willful or not of a fact latent or patent, such misrepresentation may be used to resist a specific performance, unless the purchaser really knew how the fact was." § 635. This point was particularly considered by Lord Hatherley (when V. C.) in Higgins v. Samels, (7) in which case the defendant resisted specific performance on the ground of misrepresentation by the plaintiff, and it did not appear that the plaintiff knew the falsity of the statement which he made. His Lordship concluded that it was not necessary to prove that the representation complained of was made with a knowledge that it was false; and, in so concluding, relied on Taylor v. Ashton(m) and Evans v. Edmonds. (n) The latter case arose on a covenant in a separation deed, to which fraud was pleaded, and Maule, J., said, "I conceive that if a man, having no knowledge whatever on the subject, takes upon himself to represent a certain state of facts to exist, he does so at his peril; and, if it be done either with a view to secure some benefit to himself, or to deceive a third person, he is in law guilty of a (j) See on this, at common law, Kennedy v. Panama, etc., Mail Co., L. R. 2 Q. B., 580. (k) 1 Mad., 80. (1) 2 J. & H., 460, 466. fraud, for, he takes upon himself to warrant his own belief of the truth of that which he so asserts." (o) Indeed, executed contracts have been rescinded on the ground of their having been induced by false statements which were believed to be true by the persons making them.(p) § 636. Questions of considerable nicety have been raised at common law as to the effect of the misrepresentation by an agent, where the principal is innocent and neither authorized nor knew of the misstatement. It has been discussed whether such misrepresentations render the principal liable in an action for deceit.(g) It has, in a celebrated case, been held, that where an agent, without designing to deceive, made a representation which was false, but which he did not know to be so, whilst the principal had the knowledge of the actual facts, but did not make the representation, there was no evidence to support a plea of fraud or covin. (r)' § 637. But as an innocent misrepresentation by a party to the contract is a bar to his seeking specific performance of it, such questions do not seem to arise in actions of this (0) 13 C. B., 786. See, also, Peek v Gurney, L. R. 6 H. L., 377. (p) Rawlins v. Wickham, 3 De G. & J., 304 (as regards the deceased partner); Hart v. Swaine, 7 Ch. P, 42. Distinguish Brett v. Clowser, 5 C. P. D., 376; and cf. per Lord Selborne in Brownlie v. Campbell, 5 App. C., 938. (q) Udell v. Atherton, 7 H. & N., 172; Barwick v. English Joint-Stock Bank, L. R. 2 Ex., 259. (r) Cornfoot v. Fowke, 6 M. & W., 358; discussed and explained in The National Exchange Co. v. Drew, 2 Macq., 103; and see Barwick v. English Joint-Stock Bank, L. R. 2 Ex., 259. See, also, Fuller v. Wilson, 3 Q. B., 58; and in Cam. Scac. as Wilson v. Fuller, 3 id., 68, which was an action for deceit, ultfmately decided on the ground that the cause of the injury was the plaintiff's own misapprehension; and cf. per Lord Hatherley in Brownlle v. Campbell, 5 App. C., 941. 1 Young v. Covell, 8 John.'s R., 23, is a case precisely in point. It was there said by the court that an action of this nature "cannot be maintained without proving actual fraud in the defendant, or an intention to deceive the plaintiff by false representation. The simple fact of misrepresentation, unconnected with fraudulent design, is not sufficient. The evidence produced by the plaintiffs at the trial did not make out the fraud, or show enough to justify the jury in drawing the conclusion. The defendant made no representation of facts within his knowledge. He stated correctly the circumstances of the connections of Davis in Rhode Island. He lived on friendly terms with the plaintiffs; he gave them prompt and reasonable notice of his subsequent opinion of the insolvency of Davis; and it did not appear that he had any connection with Davis, or that he came and voluntarily recommended him to the plaintiffs. The advice was rash and indiscreet; but there is no ground from which to infer that it was deceitful. Deceit is the gist of the action. If the case had gone to the jury, the testimony would not have warranted a verdict for the plaintiffs, and the motion to set aside the nonsuit ought, therefore, to be denied.' In the older case of Ward v. Center, 3 John., 271, this point was treated as unsettled, though the court seems to have inclined to the view taken afterwards in Young v. Covell. Of course, where there exists the deceit or fraudulent design, said to be the gist of the action, the complaint is well laid. Gallagher v. Mason, 6 Cow., 346; Benton v. Pratt, 2 Wend., 385; Upton v. Vail, 6 John., 181. nature; for it seems clear that any misrepresentation of an agent leading up to the contract, though both principal and agent were innocent, would debar the principal from specific performance.' § 638. It may probably be laid down as a general principle in equity, that a man is bound who makes a representation which is not true, though without knowledge of its untruth, and this even though the mistake be innocent; for a man, before making a representation, ought not only not to know it to be untrue, he ought to know that it is true.(s) So, in a case where a trustee was charged by the court in respect of a misrepresentation made to a purchaser, and the trustee alleged that he did not, at the time, recollect the fact thus misrepresented, Grant, M. R., said, “the plaintiff cannot dive into the secret recesses of his (the trustee's) heart, so as to know whether he did or did not recollect the fact, and it is no excuse to say that he did not recollect it." (t)' In like manner, it may be added that, in the cases of agents rendering themselves personally liable, it is the (8) Ainslie v. Medlycott, 9 Ves., 13, 21. (t) In Burrowes v. Lock, 10 Ves., 476; accordingly Price v. Macaulay, 2 De G. M. & G., 339; and see per Lord Selborne in Brownlie v. Campbell, 5 App. C., 935, 936. 1 Rule with respect to good faith.] "It is equally promotive of good morals, fair dealing and public justice and policy, that a vendor should distinctly comprehend not only that good faith should reign over all his conduct in relation to the sale, but that there should be the most scrupulous good faith, an exalted honesty, or, as it is often felicitously expressed, uberrima fides, in every representation made by him as an inducement to the sale. He should literally, in his representation, tell the truth, the whole truth, and nothing but the truth. If his representation is false in any one substantial circumstance going to the inducement or essence of the bargain, and the vendee is thereby misled, the sale is voidable, and it is wholly immaterial whether the representation be willfully or designedly false, or ignorantly or negligently untrue. The vendor acts at his peril, and is bound by every syllable he utters or proclaims, or knowingly impresses upon the vendee, as a lure or decisive motive for the bargain. Story, J., in Doggett v. Emerson, 3 Story, 733; Hough v. Richardson, id., 659. Misrepresentation made in good faith.] A party misrepresented the law to his sister-in-law, and she, believing her title to property held by her not to be good, sold it to him, the sale being greatly to his advantage. Held, that such sale would be annulled, even where the misrepresentations were made in good faith, and in a mistaken idea of the law. Sims v. Farrill, 45 Ga., 585. 2A mortgage obtained by the misrepresentations of the mortgagee is void: and it is immaterial as to its legal effect upon the instrument, whether the mortgagee, at the time he made the representation, knew it to be false. If he made a statement of facts, knowing it to be false, it would clearly be a legal fraud; but although he did not know it to be false, yet if he undertook to state it as true, without a knowledge of its truth or falsehood, and it operated as a deception on the party to whom it was made, and thereby induce the mortgage, it would avoid it. The gist of the inquiry is not whether the party making the |