food products under the name of the Health Food Company. During this time the name had become widely known and identified with his products. Then another manufacturer of similar products adopted the name Sanitarium Health Food Company. The court decided that, although the use of the latter was accompanied by no similarity of packages and the place of the manufacture shown thereon was different, it was calculated to deceive purchasers and constituted unfair competition, as there was no necessity for its adoption. The complainant, therefore, had good cause against the other party for relief.

11. There may be deceit growing out of a partially false statement of a matter. For example, a man who is desirous of buying stock of a woman who knows nothing about the value tells her of a fact calculated to depreciate its value, but omits to tell her of other facts within his knowledge of an opposite character. This is a misrepresentation for which an action would lie.

12. A seller is not liable for deceit when the means of information are equally known to both parties as already stated. Thus, a person who goes into a store to buy a bushel of potatoes that are in a basket before his eyes cannot complain legally should half of them prove to be unsound, unless he inquired of the seller at the time of buying them, and their soundness was falsely represented.

(a) This principle has a wide application. Of late years the judicial tendency is to make a seller liable in most cases wherein it would not be easy for the pur

chaser to make an examination of the nature of the purchase for the purpose of proving or disproving the truth of the seller's statement. Thus, should a seller say to a buyer concerning a piece of land which was the subject of contract that it was free from encumbrance, and that the title was all right, and make other representations of like character, the buyer could ascertain the truth or falsity by making an examination of the records, if he pleased. Therefore, if he chooses, he can trust to the statement of the seller and hold him liable for any misstatements.

(b) It is not easy to distinguish between the cases in which the buyer ought to make some examination and those in which he is not required to make any. As time nowadays is an important element in the life of every person, he is not required to make examination in those cases where this cannot be done without considerable loss of time and inconvenience. But this rule does not apply to all matters. Thus, were the purchaser of a ship told by the seller that it was sound and correct in every respect, the law would, nevertheless, require the buyer to make some kind of examination. As the sale is important, the law imposes a duty on him to do something in the way of ascertaining the truth of the seller's statement.

(c) There are many cases in which the buyer is wholly ignorant of the nature and quality of the thing sold, and must trust to the seller's statement. This is particularly so in buying precious stones and other subjects into the examination of which great skill or technical knowledge enters. In such sales the state

ment made by the seller goes farther than in other sales wherein the buyer also possesses some knowledge concerning the nature of the things purchased.

(d) A seller who covers up a thing in such a way as to prevent the buyer from having as good knowledge as he himself possesses commits a wrong for which he is responsible. Thus, the owner of a ship who intentionally covers up defective places so that it will be difficult for the buyer to see them, who is thereby misled concerning its worth, is liable to an action by the buyer for the fraud that has been practised on him.

(e) To a contract in writing this principle does not apply. In such cases the court demands of both contracting parties that they should have knowledge of the instrument, and, if the buyer is misled, it is his own fault in not reading the paper. Surely, there is no ground for neglect or excuse for deception on his part.

13. Next may be considered the effect of misrepresenting the law that applies to a proposal contract. Whatever representation a person may make concerning this is not binding in any way, and cannot be the subject of an action of deceit because it is presumed, for the safety of society, that all understand the law.

But a person having superior means of knowing the law, and professing to know it, though not a lawyer, who should knowingly give information to influence the conduct of an ignorant person, would be liable for an actionable misrepresentation. Thus, an old citizen who professes to be familiar with the land

titles of the country meets an immigrant and proposes to sell to him a piece of land, assuring him that the title is good. It is true that the immigrant could examine the title, or employ an agent, and thus assure himself of its truthfulness. Should he, instead of doing so, trust to the representation, which should prove to be false, he would have an action against the person who made it.

14. Fraud may be proved in several ways: First, by showing that the defendant made a representation, knowing that it was false; second, that he made it recklessly without knowing whether it was true or false; third, that he made it positively of his own knowledge when he only believed it to be true without having actual knowledge; fourth, that he made it under such circumstances that it was his duty to know whether the representation was true or not.

15. The damages for not fulfilling a written contract depend on different principles. Very often the contract itself states what damages shall be incurred by its non-fulfilment.

CHAPTER XI

CONTRACT OF AGENCY

1. The relation of principal and agent.

2. A person can act as agent who cannot act for himself.

3. Agents are general or special.

4. In what ways authority may be given to agents. 5. Effect of repeating acts.

6. An agency may be established by adopting and ratifying a person's acts.

7. An agency may be established without disclosing the principal's name.

8. Description of several kinds of agents.

9. Auctioneer.

10. Authority and duties as a cashier.

II. And of other agents.

12. The authority of a general agent to make con

tracts.

13. What a general power implies.

14. The authority of a special agent to make con

tracts.

15. Authority of joint agents.

16. Effect of usage.

17. When authority to sell contains authority to war

rant.