representation made by the particulars so vague and indefinite that its only effect ought to have been to put the defendant upon making inquiries, and accordingly granted specific performance. (h) And so, again, the representation that land was uncommonly rich water-meadow, whereas, in fact, it was very imperfectly watered, was held not to be a bar to performance:(i)' and the like was held as regards a statement to the effect that the land in course of time might be covered with warp and considerably improved at a moderate cost. (j)

§ 647. But, generally speaking, in statements made by the vendor as to property, he is bound to make them free from all ambiguity, and "the purchaser is not bound to take upon himself the peril of ascertaining the true meaning of the statement;"(k) and in all cases of commendation by the vendor, a specific statement as to the character of the thing sold is to be distinguished from general laudation. The statement that a lime which would be produced by stone to be got in an unopened field would be of a particular quality, was held sufficiently precise to furnish a defense. (7)2

§ 648. Besides the vagueness of the representation, there are other grounds upon which the court will conclude that it was not relied upon by the party to whom it was made: these were discussed by Lord Langdale, M. R., in the case

(h) Trower v. Newcome, 3 Mer., 704.

(i) Scott v. Hanson, 1 Sim, 13; S. C., 1 R. & My., 128. See, also, on this point Fenton v. Browne, 14 Ves., 144; Brealey v. Collins, You., 317; Brooke v. Roundthwaite, 5 Ha., 298.

(j) Dimmock v. Hallett, L. R. 2 Ch., 21.
(k) Per Lord St. Leonards in Martin v.

Cotter, 3 Jon. & L., 507; Wall v. Stubbs, 1
Mad., 80. See, too, Moxey v. Bigwood, 4 De
G. F. & J., 351; Caballero v. Henty, L. R. 9
Ch., 447.

(2) Higgins v. Samels, 2 J. & H., 460. See,' too, Colby v. Gadsden (caveat emptor), 34 Beav., 416.

1 It is undoubtedly true that to avoid a contract on the ground of misrepresentation, there must not only be a misrepresentation of a material fact constituting the basis of the sale, but the purchase must have been made upon the faith and credit of such representations. At least, the purchaser must so far have relied on them as that he would not have made the purchase if the representations had not been made." Taylor v. Flett, 1 Barb. Sup. Ct. Rep., 475. Although other inducements besides the representations may have operated in the giving credit, it is enough if the vendor is moved by such representations, so that without it the goods would not have been parted with. Addington v. Allen, 11 Wend., 375.

2 There is also a distinction taken at law, between the mere expression of an opinion and the statement of a fact. Pars. Contr., vol. 2, pt. 2, ch. 3, p. 275, and note (j). But it is added, by the same author, that this distinction must not be carried too far; and that if the opinion was one on which the other party was justified in relying, either by the relations existing between the parties, or by the nature of the case, and it can be made to appear that the opinion expressed was not in fact held, that this should be deemed equivalent to a misrepresentation of facts.

of Clapham v. Shilton. (m) His lordship there said: "Cases have frequently occurred in which upon entering into contracts misrepresentations made by one party have not been, in any degree, relied on by the other party. If the party to whom the representations were made himself resorted to the proper means of verification, before he entered into the contract, it may appear that he relied upon the result of his own investigation and inquiry, and not upon the representations made to him by the other party: or if the means of investigation and verification be at hand, and the attention of the party receiving the representations be drawn to them, the circumstances of the case may be such as to make it incumbent on a court of justice to impute to him a knowledge of the result, which, upon due inquiry, he ought to have obtained, and thus the notion of reliance on the representations made to him may be excluded. Again, when we are endeavoring to ascertain what reliance was placed on representations, we must consider them with reference to the subject matter and the relative knowledge of the parties. If the subject is capable of being accurately known, and one party is, or is supposed to be, possessed of accurate knowledge, and the other is entirely ignorant, and a contract is entered into after representations made by the party who knows, or is supposed to know, without any means of verification being resorted to by the other, it may well enough be presumed that the ignorant man relied on the statements made to him by him who was supposed to be better informed but if the subject is in its nature uncertain-if all that is known about it is matter of inference from something else, and if the parties making and receiving representations on the subject have equal knowledge and means of acquiring knowledge, and equal skill, it is not easy to presume that representations made by one would have much or any influence upon the other."(n)

§ 649. It must not from this be inferred that the mere presence of the means of detecting the misstatement prevents the deceived person from relying on it.(o) If a statement be made by A. to B. and the means of verification be offered, B. may rely on the statement and refuse the investi

(m) 7 Beav., 146.

(n) 7 Beav., 149, 150.

(0) Central Railway Co. of Venezuela v.

Kisch, L. R. 2 H. L., 99; affirming S. C., 3 De
G. J. & S., 122.

gation: but if he accept the investigation and find or might have found the statement false, he cannot afterwards allege that he relied on the statement: for in fact he did not.

§ 650. He who, because he does not rely on what is stated to him, resorts to other means of knowledge, cannot afterwards say that the misrepresentation was what he relied on. "If," said Lord Holt, C. J., alluding to the circumstances of the case before him, "the vendor gives in his particular of the rents, and the vendee says he will trust him and inquire no further, but rely upon his particular; then, if the particular be false, an action will lie; but if the vendee will go and inquire further what the rents are, there it seems unreasonable he should have any action, though the particular be false, because he did not rely upon the particular."(p) It was on this ground that the House of Lords ultimately decided the celebrated case of Attwood v. Small.(2) The British Iron Company had sent a deputation of their directors down to Mr. Attwood's works for the express purpose of verifying his representations, and they expressed their satisfaction with the proofs produced: by this line of conduct they precluded themselves from being able to rely on any previous misrepresentations: for if a purchaser chooses to judge for himself, and does not avail himself of all the knowledge and means of knowledge open to him, he will not afterwards be allowed to say that he was deceived by the representations of the vendor. This decision was given in a suit for rescission, and not upon a defense to a specific performance; but for the present point these seem to be alike.(r)

§ 651. The principle is further illustrated by the case of Jennings v. Broughton, (s) where the plaintiff, having bought shares in a mine, afterwards sought to set aside the sale on the ground of misrepresentation as to the state of the mine; but he having visited the mine himself, and the alleged misstatements being such as he was competent to detect, the court held that his purchase of shares had not been made in reliance on the representations, and the bill was dismissed both by Lord Romilly, M. R., and the court of appeal in

(p) Lysney v. Selby, 2 Lord Rayd., 1118, L. R. 4 Ch., 101; reversing S. C., L. R. 5 Eq., 1120. 485; Farebrother v. Gibson, 1 De G. & J, 602 (q) 6 Cl. & Fin., 232. (8) 5 De G. M. & G., 126; affirming S. C., 17

(r) Cf. Aberaman Iron Works v. Wickens, Beav., 234.

chancery. "I desire," said Knight Bruce, L. J., “to be understood as at once giving my opinion against the plaintiff with regard to every 'object of sense' which on either visit to the mine he may, as an educated man of ordinary intelligence, having the use of his eyes, his mind on the alert and his interest awakened, be reasonably taken (whether much or little of a workman or a philosopher) to have observed." (t) With this last mentioned case may advantageously be brought into comparison the case of Higgins v. Samels, (u) where the representation was as to the character of the lime which could be made from the stone under a field, and where after this statement the defendant and two friends made a cursory inspection of the field in company with the plaintiff, and it did not appear that any of the persons were competent to judge by inspection of the quality of the stone for the purpose of lime burning. In this case Lord Hatherley (then V. C.) considered that the inspection did not preclude the defendant from relying upon the misrepresentation.

§ 652. Where a purchaser complained of a representation that the woods sold had yielded £250 per annum on an average of fifteen years, on the ground that though they might in fact have done so, yet that they would not have done so in a fair course of husbandry, his objection was held to be displaced by proof that he had been put in possession of a paper from which he might have ascertained that the woods had been unequally cut.(v)

§ 653. The allegation of misrepresentation may also be effectually met by proof that the party alleging it was from the beginning cognisant of all the matters complained of, (w) or after full information concerning them continued to act on the footing of the contract, or to deal with the property comprised in it as if held under the contract: as, for instance, where a lessee of a mine, after knowledge of alleged misrepresentation, continued to work it. (x)'

() 5 De G. M. & G., 131. See, also, Hay wood v. Cope, 25 Beav., 140, and Jefferys v. Fairs. 4 Ch. D., 448.

(u) 2 J. & H., 460.

(v) Lowndes v. Lane, 2 Cox, 363. See, too, Clarke v. Mackintosh, 4 Giff, 134; 11 W. R., 652.

(w) Cf. Nene Valley Drainage Commissioners v. Dunkley. 4 Ch. D., 1, where misdescription was alleged.

(x) Vigers v. Pike, 8 Cl. & Fin., 562, 650; Hume v. Pocock, L. R. 1 Eq, 423; 1 Ch., 379.

1 At law, subsequent performance on the part of the one defendant, with knowledge of the fraud acquired subsequently to the making of the agreement,

§ 654. Whether a misrepresentation not of fact, but of law, would afford a defense to an action for specific performance has not, it is believed, been decided. (y) But for the purposes of holding a defendant liable to make good a representation, or of rescinding a contract, it is certain that it must be a statement not of law, but of fact. (2) Every one is taken to know the law.'

§ 655. Questions of title are mixed questions of law and fact: but where the vendors knew of a fact which destroyed their title to a material part of the property sold (viz.: the fact that it was a recent encroachment from a common), and, nevertheless, represented that they were the owners in fee simple or had free power to dispose of the inheritance of the whole of the property sold, and the abstract they delivered did not disclose the material fact, it was held by Grant, M. R., and Lord Eldon that a bill for rescission could be maintained. This was the case of Edwards v. M'Leay. (a)

§ 656. But it must not thence be inferred that every representation that the vendor has a good title will enable the purchaser to set aside an executed contract or successfully resist specific performance. (b)

§ 657. The authority of Edwards v. M' Leay was followed and relied on by Knight Bruce, V. C., in the celebrated case of Gibson v. D'Este, (c) in which he decided that the knowledge in the vendor or her agent of a right of way over the property sold of which the purchaser was not aware, and which was not stated to him by the vendor or her agent, was a ground for the rescission of the contract. This decision was, however, overruled by the House of Lords, on the

(y) See infra, § 765 et seq.

(2) Beattie v. Lord Ebury, L. R. 7 Ch., 777; affirmed in D. P. L. R. 7 H. L, 102; Legg v. Croker, 1 Ball & B., 506

(a) Coop., 308; 2 Sw., 287; St. Leon. Law of Prop., 649. See Turner v. West Bromwich

Union, 9 W. R., 155; Hart v. Swaine, 7 Ch.
D.. 42. 47.

(b) Legge v. Croker, 1 Ball & B., 506; Hume v. Pocock, L. R. 1 Eq, 423; 1 Ch, 379; Brownlie v Campbell, 5 App. C, 925, 937. Cf. Brett v. Clowser, 5 C. P. D. 376.

(c) 2 Y. & C. C. C., 542.

and prior to its performance, precludes him from the disaffirmance of the contract; or suit for the consideration, but does not bar him of his remedy for damages. Whitney v. Allaire, 4 Denio, 554.

1 The representation must be of matter of fact, and not of a matter of law, opinion, judgment or mere intention, unless the expression of opinion constitutes a warranty, or that of intention or contract; or unless, in dealing with another, an unconscionable advantage is taken of his ignorance of his legal rights. Adam's Equity, 176; see, also, Leake on Con., 182; Kerr on Fraud and Mis., 90; Curry v. Keyser, 39 Ind., 214; Colter v. Morgan, 12 B. Mon., 278; Townsend v. Coales, 31 Ala.. 428.