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reason, regard them, when expressly made, as representations of fact which will be fraudulent where they were falsely made and have misled the other.1

guishable from an offer made, except patent had been sold for a given sum that it is even more unreliable as an in certain States, Somers v. Richards indication of value.”

(1873), 46 Vt. 170; that a note sold is False statements as to the price at “perfectly good,” Crane v. Elder which property was appraised are (1892), 48 Kan. 259, 29 Pac. R. 151, 15 not actionable. Bourn v. Davis (1884), L. R. A. 795; Bish v. Beatty, 111 Ind. 76 Me. 223. And a statement that 403, 12 N. E. R. 523; that a business goods “were billed to me" at a cer- is profitable and yields a revenue of tain price, greater than the real price, $20 per day, O'Donnell Brewing Co. was said in Massachusetts not to “go v. Farrar, 163 Ill. 471, 45 N. E. R. 283; beyond the limits allowed to vendors that a business was earning $2,500 a by what long has been understood year net, Boles v. Merrill, 173 Mass. to be the law of the Commonwealth.” 491, 53 N. E. R. 894; that stock sold Way v. Ryther, 165 Mass. 226, 42 N. E. was earning a ten per cent. dividend R. 1128. But this court has declared "right along,” Handy v. Waldron, 19 its intention not to extend the limits R. I. 618, 35 Atl. R. 834; that similar “of such lying talk as dealers may property rights had been sold at cerindulge in with legal impunity.” Kil- tain prices, Potter v. Potter, 65 Ill. gore v. Bruce, 166 Mass. 136.

App. 74 1 Sandford v.Handy (1840), 23 Wend. A statement that the price at which (N. Y.) 260; Van Epps v. Harrison the seller offers the goods to the (1843), 5 Hill (N. Y.), 63, 40 Am. Dec. buyer is the same as that at which 314 (Bronson, J., dissenting); Pender- he has sold to other persons named gast v. Reed (1868), 29 Md. 398, 96 Am. is of a matter of fact. Caswell v. Dec. 539; Teachout v. Van Hoesen Hunton, 87 Me. 277, 32 Atl. R. 899; (1888), 76 Iowa, 113, 40 N. W. R. 96, Kilgore v. Bruce, 166 Mass. 136, 44 N. 14 Am. St. R. 206,1 L. R. A. 664; Fair. E. R. 108. [In this last case the court child v. McMahon (1893), 139 N. Y. said: “Misrepresentations as to the 290, 34 N. E. R. 779, 36 Am. St. R. 701; price paid by a third person, or as to Townsend v. Felthousen (1898), 156 the selling price, have heretofore N. Y. 618, 51 N. E. R. 279; McAleer v. been held actionable or indictable. Horsey '(1871), 35 Md. 439; Green v. Manning v. Albee, 11 Allen, 520; Bryant (1847), 2 Ga. 66; Paetz v. Stop- Belcher v. Costello, 122 Mass. 189; pleman, 75 Wis. 510.

Com. y. Wood, 142 Mass. 459; FairThe following have been held to child v. McMahon, 139 N. Y. 290. be representations of fact and there. Falsehood as to rents received is simfore actionable. Representations that ilar in principle. Brown v. Castles, a business is profitable, Cruess v. 11 Cush. 348, 350. False statements Fessler (1870), 39 Cal. 336; that a cer- as to market value may not be actain income has been realized from tionable if made to an experienced the royalty on a patent, Crosland v. dealer in the article spoken of. LilienHall (1880), 33 N. J. Eq. 111; that a thal v. Suffolk Brewing Co., 154 Mass.


$ 938. Representations as to quantity.- Material misrepresentations concerning the quantity of the thing sold, which were made to be acted upon and have deceived the purchaser, will likewise justify rescission or an action. As bas been seen, a party may not ordinarily deal with his eyes shut, nor rely upon representations which are obviously untrue; but where the matter is not thus palpable to the observation, the buyer may rely upon the express and positive representations of the seller as to quantity made to influence the buyer's action, and it is no objection that the buyer might by count or measurement have ascertained that the representation was untrue.

$ 939. — But here, as in the other cases already considered, the representation must have been made as of a matter

185; Graffenstein v. Epstein, 23 Kan. St. R. 454, it was held that if the 443. But it is otherwise if they are owner of carpets covering the halls, made to an unskilled person. Dawe stairs and twelve rooms of a house v. Morris, 149 Mass. 188, 191."] knowingly and falsely represents, as

A statement that a certain person, of his own knowledge, the number upon whose judgment the buyer of yards contained, and the buyer would naturally rely, had offered a relies upon the representation, the certain price for the property is a seller is liable for the fraud, eren representation of fact. Moline Plow though the buyer might have measCo. v. Carson, 72 Fed. R. 387, 36 U. S. ured the carpets for himself. The App. 448, 18 C. C. A. 606. So of rep- earlier Massachusetts cases of Gorresentations that the seller had been don v. Parmelee, 2 Allen, 212; Noble offered a certain price. Strickland v. Googins, 99 Mass. 231, and Parker v. Graybill, 97 Va. 602, 34 S. E. R. 475. v. Moulton, 114 Mass. 99, 19 Am. R. (But Boles v. Merrill, 173 Mass. 491, 315, which deny to the buyer of 53 N. E. R. 894; Cole v. Smith, 26 land, open to observation, the right Colo. 506, 58 Pac. R. 1086, are contra.) to rely on the vendor's representa

And so of statements as to cost, tions as to quantity, were limited. where the agreement was to sell “ at They are also limited in Roberts v. cost as per invoice,” and the seller French (1891), 153 Mass. 60, 10 L. R. secretly went through and changed A. 656, 25 Am. St. R. 611, 26 N. E. R. the figures. Welch v. Burdick, 101 416. Iowa, 70, 70 N. W. R. 94. To like As to misrepresentations concerneffect: Miller v. Buchanan, 10 Ind. ing the number of cattle upon a App. 474, 38 N. E. R. 56.

range, where the difficulty of esti. are Underwood Caldwell, mating the number and all of the 102 Ga. 16, 29 S. E. R. 164.

facts are known to the buyer, see Cole 1 Thus, in Lewis v. Jewell (1890), v. Smith, 26 Colo. 506, 58 Pac. R. 1086. 151 Mass. 315, 24 N. E. R. 52, 21 Am.

of fact, and not be merely the expression of the seller's judg. ment or opinion as to matters concerning which the buyer may exercise his own judgment as well.'

$ 940. Remedies of the buyer.- Five remedies are frequently open to the buyer where the contract has been executed, though not always concurrently: 1. He may rescind the contract and recover what he has parted with. 2. He may, where the article received is of no value, recover the money paid by him as money paid without consideration. 3. He may, subject to the limitations laid down by such cases as Derry v. Peek, recover damages in an action for the deceit. 4. He may, where the representation is a term in the contract, or is what is frequently called a fraudulent warranty, ignore the tort and sue as for a breach of warranty. To these may be added another: 5. He may, in an action brought by the seller for the price, recoup his damages for the injury sustained. If the contract is executory, he may refuse performance upon the ground of the fraud by which it was procured.

$ 941. — Must restore article. If the buyer would rescind or recover the consideration paid, he must restore the article or show it to be worthless.? If the seller had no title, return to him need not be made. The other remedies, based

1 Thus, where both parties are in a ton v. Stewart (1828), 3 Wend. (N. Y.) situation to form an independent 236, 20 Am. Dec. 692; Van Epps v. judgment, an assertion by the seller Harrison (1843), 5 Hill (N. Y.), 63, 40 that the goods were sufficient in Am. Dec. 314, and valuable note. quantity to last for a certain time 7 See ante, & 914; Perley v. Balch must be regarded as a mere expres- (1839), 23 Pick. (Mass.) 283, 34 Am. sion of his opinion. Brockhaus v.

Dec. 56; Burton v. Stewart, supra; Schilling, 52 Mo. App. 73.

Mason v. Wheeler, 2 N. Y. Misc. 523; 2 See ante, $ 907.

Havey v. Petrie, 100 Mich. 190, 59 N. 3 Ante, $ 839; Ripley v. Case (1889), W. R. 187 (as to whether the buyer 78 Mich. 126, 43 N. W. R. 1097, 18 Am. is bound to return a diseased horse St. R. 428.

which it was unlawful to sell, quære); * See ante, $ 875.

Ford v. Oliphant, Tex. Civ. App. 5 Trice v. Cockran (1852), 8 Gratt. 32 S. W. R. 437. (Va.) 442, 56 Am. Dec. 151.

8 Bliss v. Clark (1860), 16 Gray 6 Peden v. Moore (1831), 1 Stew. & (Mass.), 60. Port. (Ala.) 71, 21 Am. Dec. 649; Bur

upon the existence or affirmance of the contract, do not, of course, require a restoration. $ 942.

Must act promptly.— The buyer also, if he would rescind, must act promptly and consistently. If, having knowledge of such fraud as will justify repudiation, he affirms the contract, he cannot afterwards rescind on discovering that there was greater or other fraud than that of which he was at first aware.


OF FRAUD UPON CREDITORS. $ 943. In general.— The element of fraud may likewise be introduced into the contract of sale by the fact that the sale is made for the purpose of defeating the claims of the seller's creditors. This is not the place for any extended discussion of the law of fraudulent conveyances, which belongs to the separate treatises upon that subject, but a very brief survey of some of the more important aspects of the field seems desirable, and will be given.

$ 944. The statutory provisions. The current rules of law respecting conveyances in fraud of creditors are commonly supposed to find their origin in the statute of 13th Elizabeth, chapter 5, by which all conveyances by debtors made, not

1 See ante, S 908. Buyer must re- 94; Hansen v. Baltimore, etc. Co., 86 scind within a reasonable time: (three Fed. R. 832; Smith v. Estey Organ months too long) Houston v. Cook, Co., 100 Ga. 628, 28 S. E. R. 392; 153 Pa. St. 43, 25 Atl. R. 622; (four Patent Title Co. v. Stratton, 89 Fed. and one-half months too long) Gam- R. 174. ble v. Tripp, 99 Cal. 223, 33 Pac. R. Whether he has, by acquiescing in 851; (two months held not too the sale after the discovery of the long) Boles v. Merrill (1899), 173 fraud, elected to treat the property Mass. 491, 53 N. E. R. 894, 73 Am. St. as his own, is a question for the jury. R. 308. See also Wilder v. Beede, Fleming v. Hanley, 21 R. I. 141, 42 119 Cal. 646, 51 Pac. R. 1083; Sny- Atl. R. 520; National Bank of Dader v. Hegan, - Ky. App. 40 kota v. Taylor, 5 S. Dak. 99, 58 N. W. S. W. R. 693; Humbert v. Larson, R. 297. 99 Iowa, 275, 68 N. W. R. 703; Weich 2 Campbell v. Fleming, 1 Ad. & E. v. Burdick, 101 Iowa, 70, 70 N. W. R. 40.

bona fide and for value, but with the intent to hinder, delay or defraud their creditors, were declared to be void as against such creditors and them only. The later statute of 27th Elizabeth, chapter 4, extended protection to subsequent purchasers of lands. These statutes, although probably forming part of the common law in the original States, have inspired legislation in every State of the Union which not only incorporated the form or substance of the English statutes, but has also in many cases gone farther and expressly declared what the English acts asserted by construction only. The most important of these additions is that which has been made in many States, declaratory of the intent,- that sales of goods made by a vendor having them in his possession or control, and assignments of such goods by way of security or upon condition, shall be preşumed to be fraudulent as against creditors or subsequent purchasers in good faith, unless accompanied by immediate delivery and followed by an actual and continued change of possession. $ 945.

Declaratory of common-law rule.- In relation to these statutes of Elizabeth, it is to be noticed that, notwithstanding some expressions to the contrary, the acts were simply declaratory of the common law, which, without the statutes, in the language of Lord Mansfield, “would have attained every end proposed by them.”1

$ 946. Transactions voidable, not void.- Again, though the language of the statutes is that the conveyance shall be void, it is clear that in the ordinary case it is no more than voidable, at the option and by the action of the defrauded party, because, as will be seen, until he moves the transaction

1 In Cadogan v. Kennett (1776), 2 2 « Void" in these statutes is, to Cowp. 432. To same effect (per Kent, carry their spirit into effect, to be Ch.): Sands v. Codwise (1808), 4 Johns. construed as “voidable.” Anderson (N. Y.) 596, 4 Am. Dec. 313; Farr v. v. Roberts, 18 Johns. 515, 9 Am. Dec. Sims (1832), Rich. Eq. Cas. (S. C.) 122, 235; Kearney v. Vaughan, 50 Mo. 284; 24 Am. Dec. 396; Hudnal v. Wilder Rappleye v. International Bank, 93 (1827), 4 McCord (S. C.), 294, 17 Am. Ill. 396; Lyon v. Robbins, 46 Ill. 276. Dec. 744; Beckwith v. Burrough But see Mason v. Vestal, 88 Cal. 396, (1884), 14 R. I. 366, 51 Am. R. 392. 22 Am. St. R. 310, 26 Pac. R. 213.

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