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§ 929. Where demand upon the transferee of the vendee is necessary a demand upon the vendee alone will not suffice; and this is true, it has been held, even though the vendee may be in possession of the goods as the servant or agent of the transferee, it not appearing that the transferee had authorized a refusal or that demand upon the transferee in person was impracticable. The fact that the transferee in his pleading sets up title to the goods in himself was further held not to waive the necessity of a demand.2

III.

OF FRAUD UPON THE BUYER.

§ 930. Methods of defrauding. The methods by which the buyer may be defrauded, like those by which the seller may be deceived, are almost numberless. In the main, however, they will relate either to the title, quality, quantity or value of the article, and they will be considered in that order.

§ 931. Misrepresentations concerning title. As will be seen hereafter, the sale of a chattel in the possession of the seller carries with it an implied warranty of title in the seller, but there may also be active misrepresentations concerning the title which will justify the buyer in repudiating the contract, or in maintaining an action for the deceit. Misrepresentations

& Co., no proceeding having been taken by the plaintiff to rescind the sale until after the assignment had been made. The defendant Wertheimer, therefore, lawfully acquired the title and possession of the goods, but subject to the same right of reclamation in the plaintiffs, upon their rescinding the contract, as they before had against the assignors. The original possession of Wertheimer being lawful and not tortious, it was necessary to change the character of his possession by a demand and refusal before the plaintiffs could main

tain an action against him for conversion or to recover the goods. Addison on Torts, 312; Holbrook v. Wight, 24 Wend. 169; Mount v. Derick, 5 Hill, 455; Pierce v. Van Dyke, 6 Hill, 613." Approved in Converse v. Sickles (1895), 146 N. Y. 200, 40 N. E. R. 777, 48 Am. St. R. 790.

1 Goodwin v. Wertheimer, supra. 2 Goodwin v. Wertheimer, supra. 3 See post, § 1300 et seq.

"There is no doubt if the vendor fraudulently represents the goods sold to be his own, when he knows them to belong to a stranger, an ac

concerning the existence or continuance of liens or charges would have the same effect.1

§ 932. Misrepresentations concerning quality.- Fraudulent representations made by the seller concerning the quality or character of the goods, by which the buyer is deceived, will justify the latter in repudiating the sale, or, at his option, in

tion on the case lies to recover damages therefor, though the real owner has not recovered the property, nor the vendee suffered any actual damage." Per Nelson, C. J., in Case v. Hall (1840), 24 Wend. (N. Y.) 102, 35 Am. Dec. 605 (citing Cross v. Gardner, 1 Show. 68; Dale's Case, Cro. Eliz. 44; Medina v. Stoughton, 1 Salk. 210; S. C., 1 Ld. Raym. 593).

To sell mortgaged goods without disclosing that fact is such fraud as will justify rescission. Merritt v. Robinson (1880), 35 Ark. 483.

1 False statements made by the seller's agent to the effect that liens or charges against the title had been removed will justify rescission. Halsell v. Musgrave, 5 Tex. Civ. App. 476, 24 S. W. R. 358.

To misrepresent the number and extent of the incumbrances on the property is such fraud as will justify rescission. Stevenson v. Marble (1897), 84 Fed. R. 23.

2 In Whitworth v. Thomas (1887), 83 Ala. 308, 3 S. R. 781, 3 Am. St. R. 725, where Thomas was seeking to recover from Whitworth a mule he had traded with the latter for a mare which he alleged was unsound, the court said: "There is no pretense in this case that there was any warranty of soundness of the mare. The scope of the contention is that the mare was unsound; that the fact was known to Whitworth, but unknown to Thomas; and that, in nego

tiating the trade, Whitworth represented that she was sound so far as he knew, and by means thereof induced Thomas to make the trade. If these were the facts, they armed Thomas with the right to rescind, if seasonably and properly demanded. The demand would be seasonable and proper if he tendered the mare back with no undue delay after discovering the deceit practiced upon him. 3 Brickell's Digest, 736, secs. 78-80; Perry v. Johnston, 59 Ala. 648; 2 Parsons on Contracts, bottom page 920; 3 Wait's Actions and Defenses, 432, 455, 456. If a seller knows the horse to be unsound, and informs the buyer that he is sound so far as he knows, and the buyer not knowing the contrary, nor able to discover it by ordinary observation, relies on such representation and consummates the trade, this, if injury result from it, constitutes a fraud, and the buyer is authorized to rescind if he demand it within a reasonable time after discovering the fraud."

See also that the buyer may rescind: Croyle v. Moses, 90 Pa. St. 250, 35 Am. R. 654; McCorkell v. Karhoff, 90 Iowa, 545, 58 N. W. R. 913; Hoyle v. Southern Saw Works, 105 Ga. 123, 31 S. E. R. 137; Engeman v. Taylor, 46 W. Va. 669, 33 S. E. R. 922; Spaulding v. Hanscom, 67 N. H. 401, 32 Atl. R. 154.

Where sale of bonds of no value is made by false representations as to

maintaining an action for the deceit.1 A representation, also, not a term of the contract and not amounting to a warranty, but false in fact, will likewise justify rescission where it was a material inducement to the contract,2 even though it were not so intentionally false as to sustain an action for deceit under the stricter rule laid down in such cases as Derry v. Peek. Whether the mere breach of a warranty unaccompanied by fraud will justify rescission is a question upon which there is much conflict of authority.*

§ 933. Buying "with all faults."- Of course, if the buyer expressly buys the article "with all faults," he cannot usually be heard to complain that he has been defrauded;" though even this result might be shown to have been accomplished by fraudulent artifice, or it might appear that the expression "with all faults" had acquired a limited signification which did not include the one in question."

their kind or character, buyer may recover his money. Ripley v. Case (1889), 78 Mich. 126, 43 N. W. R. 1097, 18 Am. St. R. 428. An action will lie for falsely representing that a note sold is unpaid. Sibley v. Hulbert (1860), 15 Gray (Mass.), 509.

In Hexter v. Bast (1889), 125 Pa. St. 52, 17 Atl. R. 252, 11 Am. St. R. 874, it is said: "If a person is thrown off his guard and deceived by a false and fraudulent warranty, it is sufficient, to prove the warranty broken, to establish the deceit (Addison on Torts, 1181), for one will be presumed to know of the existence or nonexistence of a fact which he undertakes to warrant."

On a false and fraudulent warranty, the buyer, at his option, may sue in assumpsit on the warranty or in deceit for the fraud. Mahurin v. Harding (1853), 28 N. H. 128, 59 Am. Dec. 401 [citing Stuart v. Wilkins, 1

Doug. 21; Williamson v. Allison, 2 East, 446; Wallace v. Jarman, 2 Stark. 162; Wardell v. Fosdick, 13 Johns. (N. Y.) 325, 7 Am. Dec. 383; Cravins v. Gant, 4 T. B. Mon. (Ky.) 126].

2 See the discussion of this question, ante, § 863. See also Goodwin v. Massachusetts Loan & Trust Co., 152 Mass. 189, 25 N. E. R. 100; Beetle v. Anderson, 98 Wis. 5, 73 N. W. R. 560. 3 See ante, & 876.

4 See ante, §§ 816-819.

5 Smith v. Andrews (1848), Ired. (N. C.) 3; Pearce v. Blackwell (1851), 12 id. 49; Baglehole v. Walters, 3 Camp. 154; Bywater v. Richardson, 1 Ad. & El. 508.

6 Schneider v. Heath, 3 Camp. 506. And the same is true where the article, e. g., a horse, is sold "sound or unsound." West v. Anderson (1831), 9 Conn. 107, 21 Am. Dec. 737. 7 As in Whitney v. Boardman (1875), 118 Mass. 242,

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$ 934. Misrepresentations must have deceived buyer. Here also, as has been already seen,' the representation must be made as of a matter of fact, and not as a mere expression of opinion. And here, also, the misrepresentation must have been material and must have deceived the buyer; but, while the buyer must ordinarily use his eyes and avail himself of opportunities open for information, still, if the parties are not on equal footing, or the seller uses artifice to allay suspicion or prevent investigation, the seller cannot escape responsibility for fraudulent misrepresentations by asserting that the vendee too confidently relied upon them or too implicitly believed them.3

935. Concealment of latent defects. As has been seen in earlier sections, the active concealment of the truth and the intentional concealment of material and latent defects known to the seller and unknown to the buyer are, by the weight of authority, tantamount to fraudulent representations. The buyer deceived by them will therefore be justified in rescinding the sale or suing in tort for the deceit." All the more so,

1 See ante, § 871.

2 Thus an assertion by the seller of a patent right that it is valid and does not interfere with any former patent must be regarded as the mere expression of an opinion, unless it appears that the seller knew of a prior patent covering the same ground. Reeves v. Corning, 51 Fed. R. 774. So also Huber v. Guggenheim, 89 Fed. R. 598.

3 See ante, § 881. See also Strand v. Griffith (1899), 38 C. C. A. 444, 97 Fed. R. 854 [citing Chamberlin v. Fuller, 59 Vt. 256, 9 Atl. R. 832; Maxfield v. Schwartz, 45 Minn. 150, 47 N. W. R. 448, 10 L. R. A. 606; Warder v. Whitish, 77 Wis. 430, 46 N. W. R. 540; Graham v. Thompson, 55 Ark. 299, 18 S. W. R. 58; Hale v. Philbrick, 42 Iowa, 81]; National Bank of Dakota

v. Taylor (1894), 5 S. Dak. 99, 58 N. W. R. 297.

4 See SS 868, 869, and cases cited. 5 On a sale for a "sound price," a failure to disclose a latent defect, which, if known, would deter the buyer from purchasing, and which would ordinarily escape the attention of a buyer, is fraudulent. McAdams v. Cates (1857), 24 Mo. 223; Barron v. Alexander (1858), 27 Mo. 530; Grigsby v. Stapleton (1887), 94 Mo. 423, 7 S. W. R. 421. To sell a promissory note without disclosing that the maker is, to the seller's knowledge, insolvent, is fraudulent under the Georgia code. Gordon v. Irvine (1898), 105 Ga. 144, 31 S. E. R. 151.

To fail to disclose the blindness of a horse where it was not apparent to

of course, is this true, as in the preceding section, where the seller uses artifice to conceal the defect or to ward off inquiry,'

the buyer is a fraud which will justify an action. Hughes v. Robertson (1824), 1 T. B. Mon. (Ky.) 215, 15 Am. Dec. 104. To the same effect: Dowling v. Lawrence, 58 Wis. 282, 16 N. W. R. 552; Stevens v. Fuller (1837), 8 N. H. 463; Paddock v. Strobridge (1857), 29 Vt. 470; Cardwell v. McClelland (1855), 35 Tenn. (3 Sneed), 150. All the more so where the seller declared the animal "all right." Moncrief v. Wilkinson (1890), 93 Ala. 373.

To sell a bull which the seller knows is being bought for breeding purposes, without disclosing that the bull was, to the seller's knowledge, impotent, though there was no act ive deceit, will render the seller liable for damages in an action for deceit. Maynard v. Maynard (1877), 49 Vt. 297.

To sell animals known to be afflicted with contagious diseases, without disclosing that fact, is also such a fraud as will justify rescission or action for damages. Wintz v. Morrison (1856), 17 Tex. 372, 67 Am. Dec. 658; Grigsby v. Stapleton (1887), 94 Mo. 423, 7 S. W. R. 421; Jeffrey v. Bigelow (1835), 13 Wend. (N. Y.) 518, 28 Am. Dec. 476 (a fortiori where the seller actively misleads as to the nature of the disease); George v. Johnson (1845), 6 Humph. (Tenn.) 36, 44 Am. Dec. 288; State v. Fox (1894), 79 Md. 514, 24 L. R. A. 679.

'In Raeside v. Hamm (1893), 87 Iowa, 720, 54 N. W. R. 1079, seller knew that a horse sold had a serious disease; he misrepresented its character and severity, gave the horse medicine to conceal the symptoms, and thus effected the sale. The horse soon after

died from the disease. Held, fraud which would defeat a recovery of the price and justify recovery by vendee for time and money spent on the horse. See also Timmis v. Wade, 5 Ind. App. 139, 31 N. E. R. 827. So where, on the sale of a horse known by the seller to be unsound in a certain respect, the seller conceals the defect, and gives evasive and artful answers to inquiries, with the intent to deceive, and thereby deceives and injures the purchaser, the latter may rescind. Croyle v. Moses (1879), 90 Pa. St. 250, 35 Am. R. 654. So where on the sale of a mule and a horse the seller made representations concerning them, under circumstances evidently designed to prevent examination of them, it was held that he must be deemed to have warranted even against defects which would otherwise have been open to discovery upon examination. Kenner v. Harding (1877), 85 Ill. 264, 28 Am. R. 615. So the statement of part of the truth only, in regard to the soundness of a horse, when inquiry was made respecting it, was held equivaent to false representation. Graham v. Stiles (1865), 38 Vt. 578. And a statement by the seller of a horse that the horse was sound so far as he knew was held fraud, where it appeared that the seller then had good and reasonable grounds to believe that the horse was unsound, but did not disclose such grounds. Wheeler v. Wheelock (1861), 34 Vt. 553; Whitworth v. Thomas (1887), 83 Ala. 308, 3 S. R. 781, 3 Am. St. R. 725.

So, where the buyer of a monument, noticing what seemed to be (and were in fact) defects in the

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