injured by it.1 The rule is frequently stated that it must have been made with an intention to deceive the party injured, and this, of course, is true; but it is not essential that an intention to deceive should have been actively present to the deceiver's mind, nor that he should have foreseen and contemplated all of the results which would ensue.2 The intention to deceive will be presumed from the fact that he has made a statement, which he did not know or believe to be true, with the intention that it should be acted upon, and this presumption cannot be overthrown by evidence that there was no intention to deceive.3 If, on the other hand, the representation was not made with the intention or expectation that it would be acted upon, or was not calculated to induce action, the mere fact that some one has acted upon it to his injury will not give rise to an action of deceit nor warrant rescission.1 § 878.. The representation must also have been made to induce action by the party injured,5 though it need not have 1 Endsley v. Johns (1887), 120 Ill. 469, 12 N. E. R. 247, 60 Am. R. 572; Cowley v. Smyth (1884), 46 N. J. L. 380, 50 Am. R. 432; Tacoma v. Tacoma L. & W. Co., 16 Wash. 288, 47 Pac. R. 738. 2 Thus in Judd v. Weber (1887), 55 Conn. 267, 11 Atl. R. 40, it is said: "It is a mistake to suppose that it is essential to a fraudulent intent that it should reach forward and actually contemplate the resulting damage to the other party. There is a fraudulent intent, if one, with a view of benefiting himself by intentional falsehood, misleads another in a course of action which may be injurious to him.” 3 In Cowley v. Smyth (1884), 46 N. J. L. 380, 50 Am. R. 432, it is said: "The simplest form in which the question of the sufficiency of proof arises is where the proof is that the representation was false to the de fendant's knowledge. The scienter as well as the falsehood being proved, proof of the fraudulent intent is regarded as conclusive. Evidence that the defendant intended no fraud will not be received, and the jury will be instructed to find for the plaintiff, though they should be of opinion that the defendant was not instigated by a corrupt motive of gain for himself, or by a malicious motive of injury to the plaintiff." Fraudulent intent will be presumed from false representation intended to be acted upon. Haven v. Neal (1890), 43 Minn. 315, 45 N. W. R. 612. A denial of actual intent to defraud does not avoid the consequences of an act which is in effect a fraud. Newlove v. Callaghan (1891), 86 Mich. 301, 48 N. W. R. 1096. 4 See Smith v. Mariner (1856), 5 Wis. 551, 68 Am. Dec. 73. 5 Thus in Carter v. Harden (1886), been made directly to him; if it be made to one person with the expectation and purpose that it shall be communicated to and acted upon by another, it is enough.' Neither is it necessary 78 Me. 528, 7 Atl. R. 392, it is held that a wife cannot maintain an action to recover damages for injuries received by her in using a vicious horse, against the person who sold the horse to her husband with representation that it was not vicious. Plaintiff contended that defendant sold the horse to her husband knowing that it was to be used as a family horse, but the court found that defendant did not know this, but supposed it was to be used by the husband in his business as a sewing machine peddler. The case was likened to Winterbottom v. Wright, 10 M. & W. 109, and distinguished from Langridge .v. Levy. In Langridge v. Levy (1837), 2 M. & W. 519, it appeared that Levy sold a gun to the father, Langridge, for the use of himself and his sons, with certain representations as to its make and safety, which proved to be untrue, and Langridge, the son, in using the gun, was injured. Held, that the son might maintain an action against Levy to recover damages. It has been said, however, in later cases, that this was regarded as a case whose principle was not to be extended. And, in general, the rule is well settled that the false representation will give a cause of action to those persons only who had a right to rely upon it as one made with the intention that it should or might influence their action. Wells v. Cook (1865), 16 Ohio St. 67. 88 Am. Dec. 436; McCracken v. West, 17 Ohio, 16; Raw lings v. Bean, 80 Mo. 614; Beesley v. Hamilton, 50 Ill. 88; Savings Bank v. Albee, 63 N. H. 152, 56 Am. R. 501; Munro v. Gairdner, 3 Brev. (S. C.) 31, 5 Am. Dec. 531. The cause of action survives to the personal representatives of the person deceived. Baker v. Crandall (1883), 78 Mo. 584, 47 Am. R. 126. (In cases of negligence for selling or furnishing dangerous articles, the right of a remote party to sue, if injured, has been sustained. Schubert v. Clark, 49 Minn. 331, 51 N. W. R. 1103, 32 Am. St. R. 559, 15 L. R. A. 818; Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455; Norton v. Sewall, 106 Mass. 143, 8 Am. R. 298; Wellington v. Oil Co., 104 Mass. 64; Elkins v. McKean, 79 Pa. St. 493; Bishop v. Weber, 139 Mass. 411, 1 N. E. R. 154, 52 Am. R. 715; George v. Skivington, L. R. 5 Ex. Cas. 1; Devlin v. Smith, 89 N. Y. 470, 42 Am. R. 311. Contra, Heizer v. Kingsland Mfg. Co., 110 Mo. 605, 19 S. W. R. 630, 33 Am. St. R. 482, 15 L. R. A. 821; Necker v. Harvey, 49 Mich. 517, 14 N. W. R. 503; Curtin v. Somerset, 140 Pa. St. 70, 21 Atl. R. 244, 23 Am. St. R. 220, and cases cited in these cases.) In Peek v. Gurney, L. R. 6 H. L. 377, it was held that liability for false representations in a prospectus to induce the subscription for shares did not extend to the vendees of the original subscribers. But in Waterbury v. Andrews (1887), 67 Mich. 281, false representations to a husband, repeated by him to his wife to induce her to become surety for him, were held to avail the wife to defeat liability. 1 Chubbuck v. Cleveland (1887), 37 Minn. 466, 35 N. W. R. 362, 5 Am. St. R. 864 [citing Langridge v. Levy, that the particular person who shall act upon it be at the time identified; if it be made to be acted upon by any one of a class of persons and one of that class does consequently act upon it, it is sufficient.1 § 879. Party complaining must have been deceived by the representation. In the next place the party complaining must have relied upon the representation and been deceived thereby. For if he did not rely upon the representation, or if he knew it was false and therefore was not deceived by it, it has done him no injury.? And so, if he did not believe the supra; Iasigi v. Brown, 17 How. (U. S.) 183]. Representation may be made to agent. Beetle v. Anderson, 98 Wis. 5, 73 N. W. R. 560; Riggs v. Thorpe, 67 Minn. 217, 69 N. W. R. 891. 1 This is well illustrated by the cases (more fully to be considered in a later section, § 894) of representations to commercial agencies, to be by them communicated to their patrons. Eaton v. Avery, 83 N. Y. 31, 38 Am. R. 389; Gainesville Nat. Bank v. Bamberger, 77 Tex. 48, 13 S. W. R. 959, 19 Am. St. R. 738; Robinson v. Levi, 81 Ala. 134, 1 S. R. 554; Stevens v. Ludlum, 46 Minn. 160, 48 N. W. R. 771, 13 L. R. A. 270; Mooney v. Davis, 75 Mich. 188, 42 N. W. R. 802, 13 Am. St. R. 425; Fechheimer v. Baum, 37 Fed. R. 167, 2 L. R. A. 153: Genesee County Savings Bank v. Michigan Barge Co., 52 Mich. 164, 17 N. W. R. 790, 18 N. W. R. 206. Representations made to the public generally, by means of prospectuses and the like, issued by the directors or promoters of corporations, for the purpose of securing subscriptions, deposits, etc., also afford an excellent illustration of how a representation to a class, i. e., the public, may become a representation to an individual, when one member of that public adopts and acts upon it. See Derry v. Peek. 14 App. Cas. 337; Peek v. Gurney, L. R. 13 Eq. Cas. 79, L. R. 6 H. L. 377; Seale v. Baker, 70 Tex. 283, 7 S. W. R. 742, 8 Am. St. R. 592; Bartholomew v. Bentley, 15 Ohio, 659, 45 Am. Dec. 596; Delano v. Case, 121 Ill. 247, 12 N. E. R. 676, 2 Am. St. R. 81; Morgan v. Skiddy, 62 N. Y. 319; Cole v. Cassidy, 138 Mass. 437, 52 Am. R. 284; Cowley v. Smyth, 46 N. J. L. 380, 50 Am. R. 432; Terwilliger v. Great West. Tel. Co., 59 Ill. 249; Paddock v. Fletcher, 42 Vt. 389. 2 Ming v. Woolfolk (1885), 116 U. S. 599, 6 S. Ct. 489; Proctor v. McCoid (1882), 60 Iowa, 153, 14 N. W. R. 208; Humphrey v. Merriam (1884), 32 Minn. 197, 20 N. W. R. 138; Priest v. White (1886), 89 Mo. 609. 1 S. W. R. 361; Bennett v. Gibbons (1888), 55 Conn. 450, 12 Atl. R. 99; Arnstine v. Treat (1888), 71 Mich. 561, 39 N. W. R. 749; Phipps v. Buckman, 30 Pa. St. 401; Hiller v. Ellis, 72 Miss. 701, 18 S. R. 95; Gregory v. Schoenell, 55 Ind. 101; Dady v. Condit, 163 Ill. 511, 45 N. E. R. 224; Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 S. R. 651; Davidson v. Crosby, 49 Neb. 60, 68 N. W. R. 338; Fromer v. Stanley, 95 Wis. 56, 69 N. W. R. 820. If the party acted on his own judg representation, or if its falsity was apparent from the things open to his observation, or, according to many cases, if its falsity would have been discovered if he had exercised ordinary care and prudence, he cannot be deemed to have been deceived. § 880.. In order to give rise to a cause of action, the representations, it was said by the supreme court of the United States, must be representations relating to a matter as to which the complaining party did not possess at hand the means of knowledge. Where means of knowledge are at hand, and equally available to both parties, and the subject of the purchase is equally open to their inspection, if the purchaser does not avail himself of those means and opportunities, he will not be heard to say, in impeachment of the contract of sale, that he was drawn into it by the vendor's misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by overconfidence in the statements of another.3 ment or investigation he cannot complain. Slaughter's Adm'r v. Gerson, 13 Wall. (U. S.) 379; Southern Development Co. v. Silva, 125 U. S. 247, 8 S. Ct. 881; Farrar v. Churchill, 135 U. S. 609, 10 S. Ct. 771; Farnsworth v. Duffner, 142 U. S. 43, 12 S. Ct. 164; Colton v. Stanford, 82 Cal. 351, 23 Pac. R. 16, 16 Am. St. R. 137; Halls v. Thompson, 1 S. & M. (Miss.) 443; Hagee v. Grossman, 31 Ind. 223; Nye v. Merriam, 35 Vt. 438. 1 Bowman v. Carithers, 40 Ind. 90; Dady v. Condit, 163 Ill. 511, 45 N. E. R. 224; Hartford F. Ins. Co. v. Kirkpatrick, 111 Ala. 456, 20 S. R. 651; Davidson v. Crosby, 49 Neb. 60, 68 N. W. R. 338; Fromer v. Stanley, 95 Wis. 56, 69 N. W. R. 820. cases cited in following note. Information of the falsity of the representation received at any time before the party has become bound is enough. Whiting v. Hill, 23 Mich. 399; Pratt v. Philbrook, 41 Me. 132. 3 Slaughter's Adm'r v. Gerson, 13 Wall. (U. S.) 379. To same effect: Long v. Warren (1877), 68 N. Y. 426; Studer v. Bleistein, 115 N. Y. 316, 22 N. E. R. 243; Rubber Co. v. Adams, 23 Pick. (Mass.) 256; Mooney v. Miller, 102 Mass. 217; Brown v. Leach, 107 Mass. 364; Leavitt v. Fletcher, 60 N. H. 182; Hobbs v. Parker, 31 Me. 143; Rockafellow v. Baker, 41 Pa. St. 319. 80 Am. Dec. 624; Saunders v. Hatterman, 2 Ired. (N. C.) L. 32, 37 Am. Dec. 404; Etheridge v. Vernoy, 2 Long v. Warren, 68 N. Y. 426, and 70 N. C. 713; Finlayson v. Finlayson. § 881. Right to rely on representation.- This rule, however, is one not to be extended beyond the cases falling clearly within it, for where a person intentionally makes a false representation to influence the action of another, particularly where the representation is of such a kind as naturally to allay investigation, and thereby induces him to rely on the representation to his injury, the guilty person will not be permitted to escape liability by saying that the other was too easily deceived, or ought not to have trusted him.1 And if, in any case, the means of knowledge were not present or were not equal, as if the matter was peculiarly within the knowledge of the 17 Oreg. 347, 21 Pac. R. 57, 3 L. R. A. 801; Moore v. Recek, 163 Ill. 17, 44 N. E. R. 868; Griffith v. Strand, 19 Wash. 686, 54 Pac. R. 613; Olcott v. Bolton, 50 Neb. 779, 70 N. W. R. 366 Dillman v. Nadlehoffer, 119 Ill. 567. Thus, in Albany City Sav. Institution v. Burdick (1881), 87 N. Y. 40, the court, speaking of Long v. Warren, supra, said: "The authority of that case should not be extended to cases not clearly within the principles there laid down. It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded, when he demands relief, that he ought not to have believed or trusted him. Where one sues another for negligence. his own negligence contributing to the injury will constitute a defense to the action; but where one sues another for a positive, wilful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evil-doers." In Warder, etc. Co. v. Whitish (1890), 77 Wis. 430, 46 N. W. R. 540, it is said: "A person cannot procure a contract in his favor by fraud and then bar a defense to it on the ground that had not the other party been so ignorant or negligent he could not have succeeded in deceiving him." See also to same effect: Jackson v. Collins, 39 Mich. 557; Gardner v. Trenary, 65 Iowa, 646, 22 N. W. R. 912; Olson v. Orton, 28 Minn. 36, 8 N. W. R. 878; David v. Park, 103 Mass. 501; Linington v. Strong, 107 Ill. 295; Thorne v. Prentiss, $3 Ill. 99; Cottrill v. Krum, 100 Mo. 397, 18 Am. St. R. 549, 13 S. W. R. 753. In Chamberlin v. Fuller (1886), 59 Vt. 247, it is said: "The defendant insists that the false representations must have been such as to deceive a man of ordinary care and prudence; i. e., if a man is not endowed with those faculties he is at the mercy of every swindler who makes him his prey, excluding from the benefits of the law the very class around whom its arm should be thrown-thus protecting the strong and robbing the weak. As well adopt Rob Roy's rule: |