*1 COURT, SUPREME Guy Appellee. Appellant, R. Richards, Smith, William praying A bill Was of filed in Circuit of the southern district New York, Court that a sale of a of a of land in Goochland and tract portion county, purchase foy gold Virginia, was, a should rescinded. The state, on which there be pur- alleged gold chaser arts fraudulent and other mine; misrepresentations seller, which he was induced make the Court affirmed the decree , by purchase. of the Circuit of the district of New which the contract whs York, Court southern by ordered to be rescinded. is mggestio It an ancient and well whenever veri, established principle, suppressio ground set together, aside and more afford sufficient occur, both especially falsi release or conveyance. selling be to know whether the must representation party property presumed he is 'of most makes of it is If it to fraud be_fálse, true false. he knows positive gross negligence: be and in con- , he il can kind; it, if does not know then only resulting a from such on mistake a Court of (cid:127)teftiplation Equity, representations fqprided Jbcgjjgence that the owner is them ther fraud. The upon assumption confides purchaser it. And it immaterial knows own purchaser property, truly represents injury to him or fraud. The whether froth mistake proceeded misrepresentation same whatever have been the motives of seller. The misrepresentations rescinding saledjy a Court of the seller a contract authorize the equity, property, something constituting an motive must be inducement material, by purchase; something in which injury. he to his It must has been misled in the other. a known trust and confidence party places which the but at a remote seller distance, Whenever a sale present, property he the' n knows the has not but which seen, buys upon purchaser relying representation in effect amounts on its then seller, truth,' warranty: good is hound to make least the.seller the representation. Court the United States from the Circuit fur appeal ON southern York. district of New Court: case is of the The. stated fully opinion was. was Mr. Webster, Botts, Mr. with whom Patton Mr. argued Mr. Mr. Critten- for the Ogden; appellant; and.by Berry .and'Mr. den for the appellee. York, southern bill In the Court for the district of New Circuit contract, of rescinding was filed made for by Guy purpose ' Smith, R. purchase with William in the state of the con- Virginia, mine Goochland agreed It was counsel fraudulent. tract being' alleged Court, be entered Circuit decree should that a parties, the 22d accordingly,.oñ forma, against complainant; pro rescinding annulling entered, 1837, a decree was of April, mine, ordering Goochland in relation to purchase contract that it Smith Richards that the appellant to said Guy given up said con- said Richards Guy advanced moneys repay and de- notes made tract, by complainant the promissory and upon com- notes had defendant, paid as said been so far livered and. prayed has this decree appeal &c. From plainant, allowed to this Court. erro- the decree insisted that The counsel the appellant reversed, bill dismissed. and the and ought to be neous Z1 TERM, vi. “ has failed wholly complainant description prove the said i. Because mine’ 'Goochland- alleged the representations untrue, accurate, other than fair, in the bill to be unfair and that on contrary and representations; just descriptions *2 that cause show de- representations, in the thereof, the proofs far, and of said clarations, given and descriptions minefso bill, true, were and are and just, said the same are complained faithful. estimates made by and 2. Because the opinions appellant worth, richness and and and great and of its the value said mine. false, been exaggerated, bill to have which deceptive, alleged' and defrauding deceiving and made for purpose honest, fide real, and bona not only opi were complainant^, in entertaining, warranted as he well nions, -but such and. were expressing! ’esti- if the Because, opinion 3. even Court-should 'that'the- by vein, mine and expressed mates of the value and richness iio he is in mari- and were extravagant; exaggerated and un- for such exaggerated ner founded statements veins or law or equity responsible mine, and of said and its as to the value richness of gold. deposites mine, and all the of said Because, 4’. even if all .the descriptions as -set it and at law in said declarations made in forth.in complaint, erroneous, were so in it bill as inaccurate untrue, said fact; to rescind equity, would either not be competent, and sale of purchase had been’executed for knew that that- the appellant unless it had been proved property, inaccurate, erroneous, declarations and such and were descriptions false. Because, so plaintiff having showing 5. succeeded far testimony clearly proves, that sucji knowledge, believe, appellant and had reason believe just his'descriptions did that value, strictly of its were and mine, literally said true, and representations and'accurate. just, Because, admitted it distinctly expressly by-the com .6. that the testimony, certain specimens proved by plainant, and Smith ore, appellant forwarded gold washings Richards, to’Nathaniel taken from said to have Goochland alleged been mine, of said as fair were to him ex mine, samples exhibited .and and gave indication gold, every' that rich in ceedingly particles o.f taken, were if said were specimens mine from which jn rie, must be such mi abundant and fair' samples yery proper 9f is it clearly value. And conclusively intrinsic great and of gold, really"and were taken from .fairly that said.’specimens shown to ensure their fair and being manner Way minej said proper samples mine; that many specimens knew, Smith Was'interested others before taken from specimens with the mine, of equal said .richness any thing of for by him. Richards warded Nathaniel SUPREME COURT. Because, even the if should be proof considered as esta having blished the cuts, searches, examinations, and explorations made since,the purchase by complainants and-others from the appel lant, have demonstrated that the mine is not as valuable as indi cations warranted Smith to believe, or even property worthless wholly as a admitted, no means (and such examinations have extensive or well con been sufficient^ ducted to such justify is not re yet conclusions,) sponsible for such failure of the mine to realize the expectations founded justly the indications of value richness existed at of, sale; the time and before the whether the disappoint has ment out, resulted from the veins giving intercepted by rock,' or whatever the like kind. Such contingencies cause disappointments are to be hazarded in kind always every of'specu lative adventure'; been, have never gold mining adventures in any from them.' country,' exemption remarkable And in"this did undertake to insure them Case against appellant any act or it is On the com expression. contrary, proved, plainant those united with him in purchase, fully who (cid:127)alive to an<j' the risks hazards attendant upon ad mining *3 ventures were and speculations; emphatically and admonished these exonerated himself from hazards, when the responsi appellant declaration, for their made at bility occurrence, by explicit e time is, the min for what it sojd that he contract, gold or snowballs.’ Because,- 8. sold with all faults being expressly property what it settled (for is, accordingly rules gold or snowballs,’) lawof the vendor be contract,' to such a made cannot applicable sold, or for responsible thing for defect in the quality any vendor'; the said known unknown misdescription, or unless also .'to fraud, that he some appear committed positive resorting means of and and and misdescription, the defects artifice concealing, from discovering contrivance them.” purchasers prevented the third The counsel “that point, appellant, support , even the estimates'of if Court should be opinion,-that thfe vein, value and richness and expressed by of mine were equity responsible as of- he is' no law or' and manner- exaggerated extravagant, and-unfounded-statements such exaggerated said, its veins or deposites the value and and’richness were cited. Sugden, Law authorities gold.” following Rollis, 801, 1 Abr. Vend. 4. 2. Chandler vs. C. Jac. Lopus, (pl.) and notes Ame Yelverton, 21, 16. vs. Harvey Young, (b.), 1 211. 10 144. Salk. Browne, rican edition. Fenton vs. Ves. 1118. Sugden, Law-of Raymond, vs. S. 2 Lord Risney C. Selby, edit, Lord vs. 1 Dean, Vend. in note 1828. Amer. Kinnard 126. Cro. Jac. Coll. Dec. Sherwood 332. Vaughan, Roswell vs. Starkie, 1 61. King, vs. Salmon, Rep. 2 Davis vs. Day’s Reports. 102. 1 Levinz. Pollard M’Leod, Whitefield vs. 2 380-384. Bay. vs. 1 156. Day, Lyman, 29 TERM, 1839. vs. all the that «even if the fourth proposition, descrip-, support declarations to it mine, and of said tions untrue, inaccurate, "and set forth bill as said said complainant, fact, it would either at law erroneous, so in competent executed contract had been for. to rescind or equity sale of the unless' had been proved property, the purchase knew that such were? declarations descriptions the appellant érroneoús, and inaccurate, false.”. the dis* cited, first; showing cases counsel for re fraud,- bgtween the degree proof tinction unfairness Court to refuse of equity specific performance, quired authorize Ellard of a contract. vs. rescission necessary justify and that Robinson, Beatty. Ball 5 Cathcart vs. Lord Landaff, 1 Rep. 276.Ves. 292. 10 Peters’ rule, in Eng- 2. Cases caveat showing prevails emptor, York, both as to Virginia, pro New real land, and-personal actual fraud there rescind perty; must intentional misrepresentation. ' title,Viz. as to That estate the rule even 3. in sales of real applies 1 Layman, Day, Cro. 196. vs. Roswell vs. Jac. Vaughan, Pollard Yelverton, 21. Notes, 4 135. Giddings, Price, 1 56. Hitchcock vs. (b.) M’Clenahan, 4 Chesterman vs. Rand. 482. Ed. Commonwealth American vs Allen, 5 Ch. ib. 523. Gardiner, John. R. 29. Abbott vs. -be there can no rescis of misdescription, As defects of quality unless'there be vendor, warranty- sion or responsibility Lee, East, Parkinson vs. 2 fraud, misrepresentation. intentional 5 R. Duke Norfolk vs. Wortly, John. Taylor, 314. vs. 395. Sands Wood, 2 48. Caines’ Oldfield Rep. Seixas vs. vs. 337. Camp. Lewis, 7 Mass. 284. vs. Dyer Legge 5 Ves. 508. Round, Beatty, Croker, Ball and “ that the n As .to the sold eighth point, property expressly faults, is, what it snowballs,) according (for '-with all contract, the law to such a vendor cannot applicable rules settled defect sold, quality thing made responsible .be known to the said vendor; or unknown misdescription, for.any fraud, that he it also committed positive resorting appears unless concealing misdescription, means of some defects *4 from and .contrivance prevented purchasers discovering artifice them.” Round, 5 vs. Ves. 508. counsel for the cited Oldfield appellant Heath, 3 3 Schneider vs. Waltens, 154. Camp. Camp. vs. Baglehole Salmon, Dowson, 4 Sherwood vs. vs. Taunt. 779. Pickering 506. 2 65. Cocke, Tucker vs. Rand. 57. Green’s 2 Vernon Day. East, 632. C. 4 488. 12 S. Taunt. Keegs, vs. die Crittenden, that Mr, Mr. for the insisted appellee, Berry sold was false materially particu- description property description: set false appellee; forth brief lars SUPREME COURT. 30 vs.
[Smith Richards.] with design deceive, was adopted contended given by that he to,' the matters measures conceal of false description; even if parties could be construed ‘ n faults, that case canle within de- principles sale^ 3 Heath, in the case of Schneider vs. 506. Camp. cided contended that the contract not to they (cid:127)-But be construed a faults; to Pickering Dowson, sale with all and referred vs. 4 Taunt. 779. sale was so, If conténded fraudulent and to be ought qf aside, cases; set on the and cited Donalson vs. ex authority adjudged Boyce’s Peters, 3 1 26. ecutors vs. 210. Merev. Sherwood vs. Grundy, Weakley et al. 3 Salmon, Yerger’s Rep. 178. Day’s 5 Rep. 439. n that if They representations further contended false should mistake, considered so in made,by matters which formed the inducement- to the contract on the of tire part appellee', equity rescinding relieve ought' a.Court contract: and 1 Story’s Eq.-202. 204. McFerran vs. Taylor, Cranch, cited 270. Thomas, 3 Glassell 283. 113. Chamberlane Leigh, Marsh, vs. vs. 6 Mun. Pearson vs. 2 Bro. Chan. 389. Morgan, Hammond, vs. Allen Peters, Williams, 11 Geddings, vs. Ves. Jr. Hitchcock Calvery vs. 4 Price, 133. Lowndes Law, Cases, 363. 2.Coxe’s Mr. Justice Barbour delivered the Court. opinion This cáse comes before from a us,-by appeal decree of the Circuit ' Court for the southern district of' New York. n I' was a suit equity, brought by, appellee against the ap- aside,a to set- contract for pellant, fraud. that in December 1832, a appears land, tract of embracing Goochland-mine, called the lying of Gooch- .the-county land, Virginia, purchased by-the appellant, one-third .for him- self, York, sold One-half two-thirds Richards, for Nathaniel of the city of New $14,000. of about In price 1833, the May, of his third to Nathaniel $15,000. June, 1833,-he sold five-sixths of the-other half the appellee and others, $45,000' at the rate of the.whole of half.' .that which the interest acquired in this property, was of one:sixth,.at one-eighth part price $5,625; evidence which he repeived Richards, who acted Nathaniel ap- making sale, a agent dated writing 4th, July pellant’s acknowledging several receipt of-the purchase money., eash and of hand. This paper described the thus property *5 TERM, 1839. vs. Richards,]
[Smith the form, assumed paper and it .as said property; of part Nathaniel'Richards, was although to all title the because shows, tó the appellant. belonged one-sixth “It the following provision: contained In the same'paper said Guy the and agreed understood hereby expressly Rich- of ,his full any expenses proportion is to contribute he ards, .on hereafter the said incurred which may incurred, already mines, in mine, the .or developing for or searching premises, other any. the and buildings, machinery, purchase, erection I deem neces- object, above general expenses Richards.” Nathaniel Signed by sary. aside; to set it alleges; the bill the contract seeks This is to make it by.various representations induced Avas that the appellee contained those especially cer- appellant, and declarations bill, written by: ap- referred letters, particularly tain Richards, which the bill charges and Charles H. to Nathaniel pellant and and pur-, fraudulent false, deceptive, to have been and and deceiving persons, appellee deluding pose at an exorbitant and unconscionable to purchase them inducing price; Avereexhibited mine, which of said gold- of washings and by specimens as fair and- o'fthe samples the appellee, specimens Avhichthe bill samples; mine, charges Goochland that the were.nofcfair that' not fair .samples, knew appellant exhibited to the as fair specimens he tó be appellee's caused them mine, him, of defrauding of said express purpose and samples said mine, his interest in him to inducing purchase part false,,fraudulent, de- as well as the «aid specimens, faith of bill further charges, that ceptive representations. The 21st, Richards, dated letter's of Nathaniel appellant January mine, 1833, Goochland. containing description read him, exhibited to him, request, express specimen June, 1833, the- Nathaniel month time his short before purchase. further-charges, appellant represented ap- well that he was skilled in mining, the business of pellee, been having he America; in that business in South under- employed of Aminsin a the cost and mine, expense stood extracting gold directions materials, foreign Avhich sur- rounded, and in Avhich is most That gold the Vir- usually found. Mining .ginia Company, fitness of relying upon appellant aforesaid, business for the and his skill in the principles process him mining, employed as their and that the whole agent; during time of Gooch- negotiations representations concerning mine, he land agent the Virginia Mining Company.. That never Avasat the nor Goochland did- gold he ever visit the tract of land in Avhichit was represented by situated; to but that in of June and appellant the months July,, honour, believing be man of strict honesty, truth, veracity, most in his.decía- faith implicit reposed SUPREME COURT. said mine, and relied exclusively upon ration^ his' representations, especially letter 21st January, 1833, 'Richard's, Nathaniel and his several letters to Chasíes H. Rich- ards,,,as containing accurate,'fair, and correct descriptions of the *6 ' Goochland mine. ... then,, The hill to certain proceeds charge specific misrepresenta- tions in' the to foilowing'particulars, wit: 1st. not, That áre théyé, been,- never have veins of any gold whatever in the kno\vn to mine, Goochland that fact was well Smith, at-the letters, he wrote- the when time representations neither before-stated; and that hundred one nor other any feet, mine, irtunbor of was were, on' vein in or at' said the date the letter Richards, of. "the to Nathaniel or appellant from at other any time, or opened developed. That so 2dly. far mine, thére rich veins of in the being gold - as is, as we (that mentioned letter under- last stand it, of the 21st of 1833,to Richards) assert- January, Nathaniel that there were had cuts, and searches which recently, since ed.- his purchase been made, directions, the' said mine in various veins of no chasers and that the gold whatever be discovered: could pur- thereof, had compelled, beéri after including appellee, searches, many' shafts, cuts and sinking making experiments, and deal expending great search after of abandon the money enterprise, ;(cid:127) in said gold workmen, mine to dismiss and give their the n up of project altogether. -mining That there are, and were at the time of the 3dly..' appellant’s representations in. said fine of. mine, to be particles gold /.elation found on the premises, included within bounds Goochland mine. minute, But that few, such so so are and were particles mixed with up substances, sand thát s'o and other .the cost foreign extracting gold'Trom such would far exceed the materials value he gold that the four hundred' extracted: and when off fifty-six acres, and land specified acres of hundred receipt stated, Richards, utterly Nathaniel are before worthless as a gold and the therein of no interest value mine; appellee’s whatever.' n 4thly. That mine, said gold ex- specimens -washings hibited!» the and direction of appellee and the order the are others, by mine, fair said specimens gold examples not, and Were not at the time were the- when they forwarded appellánt to Nathaniel or specimens said fair samples, belief, mine; and the were not they, appellee expresses-his n (cid:127) taken from the Goochland 'mine. 5thly.. That.the Goochland contain veins gold, do not premises npr any considerable rich in they gold, nor deposites of-gold; are. or of any value either mining, .whatever, any purpose ‘ or gold, any other metal. The answer of utterly defendant, it, iti various parts unqualifiedly denies or intention or to deceive deludes any purpose TERM, or ever-done, or appellee, baldone, permitted any- that effect. It denies thing produce that he'ever made any in- flated or mine, false representations, descriptions induce any person inordinate interest give price his therein. insists that in the letter of the 21st January, Nathaniel Richards, his give true and object accurate account Goochland so far as the facts could be ascertained own' observation and from the information of others on.whom he could rely; and that in those addressed to-Charles H. Rfejiards, no fact n him, stated as known to which was untrue so far facts in reference to given, the Goochla.nd and that mine; as well in the before letter to Nathaniel, mentioned those to H. Charles ‘ Richards, as far as were opinions expressed-, they honestly without or any'intention, motive, to deceive' purpose entertained* the whatever. appellee, It insists that the person specimens ore 'sent him to Nathaniel Richards were fair samples of mine; and denies that these were directed specimens by him to be exhibited person, designs appellee, deceiving defrauding any person to whom might *7 shown. It in insists, that all the general, statements he made, ever at time, any in ledge, they from othérs person any concerning mine, Goochland whether or so given far facts were writing verbally, within his know- true; so far as the strictly were derived information believed, was he true; it to given be and so far his Goochland, on of mine, has opinion such expressed subject entertained, interest, without honestly mo'ive, any or view, or to deceive the or other directly, indirectly, ariy appelieé veins, insists, It that are and were in the person. gold there examination, mine, Goochland and that from before personal made, he knows that the Goochland mine con- richness, tains veins of and of intrinsic gold extraordinary great at he wrote the letter to Nathaniel that, value. insists the time n Richards, there an feet or according hundred upwards, his said mine. best'judgment, developed vein ‘ informed, that the have been admits, may The answer letter or read the Richards, Nathaniel that he had shown time;he what others, 1833, to the January, appellee 21st Richards, he was informed unable state: that H Charles' peen that said letter had read to him others, including the api before the pellee, purchase made by him and them of his interest m the Goochland gold mine: that he had been informed, and'believes true, it to be that 'about the June, 1833, month Nathaniel Rich ards appellee did specimens others wgsh exhibif the. ings gold ore, by the. appellant, as specimens forwarded of. the its mine, productions of gold: June, Goochland the appellant wrote several letters to Charles H. Richards: that in Goochland, describing mine in those letters he used language of a very decided character, as being richest very mine in Vir COURT. SUPREME vs. Richards.] esteemed himself the appellant States: in the United ginia, well on such that the relied mining, business in the skilled the whole time that during the purchase: making skill .in the Goochland concerning and representations negotiation Com the .Virginia Mining as the agent mine, employed he was tract of land not visit did that the appellee : pany therein : that the ne interest an bought he was, before on which was carried on mine principally for the purchase gotiation he believes the Richards: aiid Charles H. Nathaniel through mine, fully in' gold an interest he when purchased appellee, and letters of ap and representations the declarations believed thereof; and have been so as he true, far informed to be pellant that what in the reliance full an interest therein that he purchased declared, subject or written on said, ever this defendant but does not admit Goochlandmine,.was true; strictly declara his representations, on the faith of solely appellee purchased letters. tions, and - bill, as well material'allegations stated the thus Having n answer, we are enabled' see the admissions in the denials But, we are called to decide. are which what the questions form, in a those we will condensed them, present, we state before (cid:127) falsehood of which consti- alleged the representation, parts In the letter from.the bill. ap- appellee’s gravamen tutes 1833, in 21st, under date of January to Nathaniel pellant account views of the Gooch- give which he professes been,.up- states that there he mine, amongst things, land has. feet on the vein wards one hundred developed, proves indeed,'much richer discovered in any-thing yet. rich than very States; the United oí the hereto- quanty surpasses a-ny fore discovered surface rich in country: gold. found, to'the formations in which the ore is sáys—It quite wide, cut, a distance in one of twelve feet lias been place the veins are disseminated formation, the whole throughout two to' six inches wide, from have several threads and many at another together; has been found point concentrated feet wider:. and that there is will, several ore this mine that *8 without doubt, several give- hundred to the pennyweights hundred This pounds. letter was had, written after the appellant as he made a. says, himself careful examination vein personal which he developed, says it had as far for distance was lengthwise. feet of one hundred June, 1833, thé the lith appellant wrote to On' Nathaniel show him to all the Richards, requesting specimens, washings, plat, mine, to of the Guy, (the and description appellee,) others. these specimens, This letter washings, and. &c. were shown to the this with request. appellee compliance The representations in then, mine, consist, relation of the statements above, part, the letter of the 21st extracted 1833, which January, Was and, or read to the appellee; shown part, of specimens, wash- TERM, 1839. &c; exhibited to him at appellant’s request, appellant ings, tiation whilst a nego- was on between and Charles H. going in, interest appellant’s for himself purchase others, was one, of whom and but a short very was time before made. purchase order is, first were these question true or representations untrue ? sides, haveWe examined the evidence in the record both much'care. And we think mination and extend state the these:— to into a detailed exa- unnecessary, go that here, evidence inasmtieh as it would comparison this to useless will opinion We, therefore, length. only fact which we conclusions of arrived. have They .at We think that true, it not there was one hundred feet developed on the vein, which be We rich indeed. do not proved very mean to was that a continuous one say, .exposure of vein for hundred feet the rise of the term on the implied by we developed; contrary, are cuts, evidence, from the that'the sinkingsbafts, making at intervals, distance, for that would of this satisfy meaning and that we think was But expression, clone. we mean that say, quantity there was small of ore found in of this although vein, rich, which was proportion-; was a small yet pks.it relatively there was little, in some and in one, that we think is, there was at evidence none all. weight of true, We think it not We think was rich in gold. surface that the true, not was any point twelve formation the veins disseminated wide, feet or that were throughout whole from two to six formation, wide, in threads inches and in many together.' had several concentrated true, that there was ore We think it not from that mine, that would several hundred pennyweights ofgoldtothe give hundred that there We will not be say not might small pounds. piece at that would rate: but we think yield this re- (cid:127)selected.which to' produce impression, mid presentation calculated justify belief, an hundred of ore pounds might gotten together, vVhich several hundred would pennyweights gold. produce Any would, of grossest deception. in our language interpretation opinion, impijte the. appellant We think that which were specimens washings forwarded fair Nathaniel Richards hot of mine. samples , for which could have only proper purposes been .exhi- bited, to form an enable estimate of the purchasers richness have, therefore, the mine: in our opinion, ought exhibited, either of the richest specimens (cid:127)caused poorest extremésj as 'to.show the or some quality, average quality., so ‘ them to knowing whom be exhi- persons requested bited, and an them the seen had never the mine. lgst appellee, other col so, undér Any a false circumstances, produce could fail its estim of value. *9 COURT. SUPREME
36 t». Richards.] [Smith to the facts of this in relation to these conclusions come Having the case ? is law of is, what case, order inquiry the next that whenever sup- principle, established is well ancient to- both more occur,'and especially falsi or veri pressio suggestio or aside release to set ground a afford sufficient gether, they conveyance. so much with sententious éxpressed thus This principle, ancient comprehensive, somewhat in terms is laid brevity, down more a text case, modern by present on the a direct .having bearing writer on . equity, indeed,, a If, stated. thus it is 208, 1 Chancery, In Maddock’s representation, false contract, man, make a treaty a upon he not, party óf which puts means by or knowingly whether fraud, a it is bargain, the terms a mistake upon under bargaining is almost in laid thus The doctrine down equity. relievable case of Neville vs. chancellor, used in the words very by Cases, exception 1 with Wilkinson, Brown’s Chan. words, not; the'proposition or whether knowingly the case' of Ainslie words, is upon embraced Medlicot, these founded by vs. In sustains Maddbck. 21, which Mr. 9 Vesey, fully “ doubt, is used. this latter case the No following strong language as a as just bind himself may by representation party much U» is what not true; he no If, knowingly, represents covenant. express doubt he is it is true, not hó fakes If, knowing without bound. another, the faith himself make .Upon bound; no is his mistake acts, though which that doubt'he other innocent.” perfectly is more^-Comprehensiveness But laid'down with the doctrine ús, who modern on equity; gives a still more precision, by writer the result what considers the form of distinct propositions, mo-, marks, various cases on the with subject, particularity, difications which it. belong “ thus Wheré the 201, 202, is stated. Story’s party Equity, or fact, intentionally, a false by design, misrepresents produces material another, in order or to cheat impression, entrap mislead him, him;' or to obtain undue such case advantage every an. fraud, terms; there is a sense there is truest positive (cid:127) act, malum, an evil intent dolum an evil ad circutnve - be as misrepresentation And the well niendum. deeds- acts, words; mislead, artifices as positive as sertions.” fact, false, Whether the thus misrepresenting it to be party knew without or made assertion knowing whether it were true or.' false, immaterial; for does wholly what one affirmation of know, true, or believe to. law, morals equally imjus- as the what tifiable And even is known to be affirmation false. positively if the innocently mistake, it party misrepresents a fact by as á equally conclusive; on operates surprise imposition Lord Or, Thurlow vs. party. it, in Neville expresses TERM, Wilkinson— n “ it misleads the Contracting, parties subject, *10 V the contract” cited, states, The the treatise last thus the author of modifications the of doctrine: material, inust of misrepresentation something constituting' or omission the inducement, actj an or motive to other, tó which he is misled his actually by injury. next riot in some- misrepresentation onlybe must place,the in material, but must be to which the thing one something, a known and confidence in other. It must party places trust matter of to riot be a mere for opinion, equally open parties both and where to inquiry; examination neither presuiried party other, but on his trust thé own rely judgment. text, these doctrine of illustrated the cases.in writers for books, it; of which present very strong some applications held extend .not to the also it is to to the but only parties contract, from others, who, gross negligence, guilty misrepresenta Thus, in the case example, tion. of Pearson vs. Morgan, 385, where Cases, A, being Ch. interested irf estate Brown’s an in to B, with 428000in favour was fee, charged which was applied know, to B, was about to lend whether the C, money who on estate. A stated that it still a subsisting charge 428000was his to B It after- was, and C lent money accordingly. appeared, held had been satisfied: was wards, charge .yet-it heirs, be charge on the lands of A’s lent was hands money knew, or to have the fact satisfac he either known ought cause was a fraud on C. tion, and his representation was the 1 Ver. Norton, á similar character case Hobbs vs. Of entered into an an 136, where one agreement purchase lands of a-third and was person/ encouraged annuity, charged own, the transaction who his latter, course -suggested was of a afterwards that such title nature-to appeared, title, and to the yet was, the owner avoid annuity.; enabled have under to confirm it. obligation held -purchaser, class in its. be- present strongest this principle aspect; Cases of cases¿ the the representation-were- these parties.making cause in .others, loss tó themselves- prevent although itby bound derived it; whereas, instances in which advantage from no those re- made the would representation, they the parties contract amount of loss the misrepresentation benefit which- to. ceive it; to the'other who on the faitli of acted if. party, produce would pot relieve it. against' did Court coiin- has been our the Courts of adopted This- principle pwn 174, the executors Ch. Roosevelt, Rep. vs. 5 John. In Fulton’s try. Roose- Fulton was-induced representations this: was case bank of the on-the discovered a valuable coal mine velt, that he land, by to Roosevelt stated for the tract of river, purchase Ohio mine; giving to embrace and besides Roosevelt twenty $1000 uav annually, $4400. him Fulton covenanted COURT. SUPREME cease, if, after the mine faith- annuity to. but years; it should not at least Fulton, produce &c. worked fully to Fulton. It accordingly conveyed appeared And land was boundaries land mine within of the bed of coal con- that there was no veyed it, in the the river, was coal adjoining rapid: there ; although' but the mine, working deep, which was navigable, hazardous, very expensive, unprofit- would be if practicable, Fulton was held to be founded contract on able. The in mistake and enjoined nuity agreed and Roosevelt was misrepresentation; perpetually Fulton, suit to recover the an- against bringing him. paid whether the deiendant says: chancellor In that case the .mistake, under through to Fulton the de letter statements lusions I am not able to' by design, imagination, say. of his own case, that' the the decision of representations for. sufficient and that the by proof, are contradicted claim are'n'ot supported, ca'se, state of the is unconscientious such a annuity, upon in the’ was affirmed Court of errors, this decree And unjust. *11 129. wen, Co 2 & Massie, Court, in this McFerran vs. in Taylor In the case of that there was a Court, remarking after material 281, the Cranch, the defendant contended that it ori- that misrepresentation, from the situation of fraud/say: not in the mistake, in par- ginated ties, sonable the form of the it and from was rea- entry, the country, and of is true in fact; this but apology point to that of presume, fact will to a that amount legal jus- the not conceive Court does (the has made the who He the tification of p'erson misrepresentation. himself, is bound on a to description given who sells property, and if it be untrue in a material point, description; make good by mistake, occasioned must the variance be remain although s.till variance. for that liable we consider sound these’cases founded in morals principles the ground-that party selling rest property and law. They must be presumed upon which to know whether he it to false, If he knows that' is fraiid true or falsé. of it is -makes does but if he not know kind; it, then it most can positive : and in of a Court contemplation negligence be from only gross mistake, on founded from resulting such equity, representations Jeremy, 6 Ves. 180. 189. 386. is'fraud. The pur negligence, that the owner it, knows assumption confides in chaser and, as it; was well truly represents argued-in own property, whether Granch, purchaser it is the case in immaterial from mistake fraud. The injury proceeded misrepresentation have been the motives s.ame, whatever seller. him' is pase in whether misrepresentation We will next inquire laid In the has been clown. first to the rule which comes up placó, o_f and it.has fact; argued it must be of matters lant’s appel- óf letter of 21st counsel, January/1833, did not profess fact, express opinions. It is to state cer- matters but TERM, vg. (Smith true, that matters of tainly opinion betweemparties dealing equal terms, are not stated, although falsely relieved because against; they mislead, presumed influence when party, each has means of information. But equal we consider the representa- tion facts. The this case not the in but statement of expression of a miné in giving description Virginia, York, which he desired to-be exhibited to the in New says, that one hundred on the vein feet had been which proved developed, rich, to United States. That much richer be-very discovered any thing yet than forma- surface was rich gold; quite wide, feet; tion were and -in one veins twelve place formation, in threads of disseminated the whole throughout two to six inches ore from mine wide; and that there was that would without doubt gold several hundred give pennyweights statements, to the hundred as these Now, to one of pounds.- we beyond question fact; it a matter of mean describes the width formation and veins. the formation Having examination, made a he declares personal wide, the width the actual width in one and then gives to be place, veins, positive in terms not of but of most conjecture, This state- He their dimensions and inches. gives .assertion. feet then, certainty. comes the standard of mathematical ment, up others, speak And even in does not profess are, quali- but without them from fication. them conjecture, speaks Take, is rich gold. this: —The surface example, will it is rich. rich, but that he thinks it turn out to be Not that to decide what no that there was was argued, .standard There is none by rich. justify calling would quantity laAV certainty: be decided mathematical which does not tant can Avith Avas describe a dis- seller it. that a require Suppose rich, it Avereproven of'land as being tract purchaser, Avouldnot equity a Court of it be that Can very poor. be poor, case is the one great certainty ease ? relief such a give as to richness must be misrepresentation other; and those Avhounderstood the the evidence of case, by in each- proven quality *12 the other. one of the be of something the must misrepresentation place the next In to to appellee ah or motive inducement material, constituting to injury. has misled his actually Avhichhe been and purchase, the suit in case tiw emphatically our Noav, in motive, but mine, think, Ave constituted only The us. before to purchase Avas induced purchaser: motive sole be Avorth- out turned in that has which high price, interest at a injury. to his has, therefore, misled greatly less; and he in next be in Avhich party It something in must, place, in trust other. and confidence lcnoAvn places heré, because the confidence than stronger Nothing could the the it; and the mine, appellant kneAV had seen never appellee specimens, description seen letter of appellee-had SUPREME COURT. [Smith Richards.] ; that he had the truth confided knew appellant the operations, mines, his and in representation, mining appellant’s skill knew that he did. bar, has been contended at the whatever But it earnestly in which the effect of in cases there misrepresentation might was avail the contract. it; least, to countervail that in it cannot case, at nothing on account of the of the character appellee, particular The of an interest in the'gold'mine purchase through Richards, Charles H. himself and others, agency acting them, his letter of amongst appellee. 1833, said, June, 18th to the things, “But appellant, amongst after all the was the above named whom gentlemen ap- (amongst rate, seen we we your letter, concluded,- had at would pellee,) ore, look at the scribing de- samples so; your have done letter he read to to N. premises (Nathaniel R. Richards,) us. re- it, The is rich is of ore but how there beyond much dispute; mine, mains to be- seen. In and its extent richness, must, course, we rely appel- your judgment.” The. lant in letter, letter of June, the 21st of the above reply “ Charles H. Richards, says: I, speaking however, sell it for I is, what and leave it gold, balls; snow whether will you decide, you at- not.” take my price, said béen of this having concluded, basis upon n was one, faults; all that is correspondence, purchase iii effect, that seller was absolved from all reason of liability, by which he -made, had the mine. relation to of this support several have been cited proposition, cases the bar: let us examine them.—The case vs. Walters, of Baglehole 154, was Camp. this: The defendant sell a vessel, about the copy subject suit had printed sale, of which a particulars “ delivered to the plaintiff, in the words: For following sale, the good brig Iris, burthen per will register 20Stons; carry 17 n keelsof coal and or 300 glass, loads of lately timber: has deli livered a cargo of sugar the West Indies, in excellent condi well tion is in all kind stores, found are' condi good ^ Hull, masts, tion. yards, standing running rigging, with'all (cid:127) faults, ship, they now lie.” plaintiff two-thirds of purchased defendant, “ to him in conveyed common.form- undertook plaintiff prove, sale, at the time of the ship had several secret defects her; that these were known to the de ; that he did not disclose them to And he plaintiff. fendant relied .upon case previous Motteaux, Cases, of Mellish vs. Peake’s 215, in which Lord Kenyon of a held-that the seller ship bound to disclose to all to him; known buyer, latent defects ob the serving terms to which the acceded of plaintiff taking ship with faults, and without be understood must warranty, relate only faults those which the discovered, could have plaintiff or which the defendants with. But Lord Ellen- unacquainted *13 TERM, vs. [Smith case doctrine of the above borough, disapproving cited; held faults, where a is sold with all ship that the seller is not to an liable action, in of latent respect defects which he knew of without dis- sale, at the time of the closing ceal unless he some used artifice to con- them from purchaser. In the volume of 505, same case is Campbell, reported of , Heath, Schneider and another vs. Chief in much tried which was Mansfield, before Justice; the the Chief opinion expressed by Justice is founded sense and good that should justice, have felt dis we so. in a conflict authorities, it, have posed, not even if it adopted been, as, we of this shall sequel .was, show it and acted subsequently recognised Court. upon “ is in these words,” is, yüth words: The that opinion they all faults as “ lie, very defect in the to exclude the large buyer calling sold; seller if the thing seller was y guil him. Case, fraud in the any positive of There these words will not protect be fraud, such either in a might false representation, o 'in using means conceal some defect. I think the particular here, by way evidence representation; that states the hull to be launched, nearly good vessel a it is a required when that Now, true trifling'outfit. false, most false? If is.this or. vitiates fraud, which What was the ? fact The hull contract. could;, worm-eaten, broken, was' the keel was and the ship not be rendered tells matter. without most seaworthy, expensive outfit. The agent (cid:127) us he framed this without particular, knowing any thing-,ofithe But it whether a signifies nothing, man represents thing be what he it to be, different from knows or whether he makes a n does not know the 'which he time to-be true or false, if in turns out be false.^ of fact As it point appeared in conceal, casé been taken, that means had fraudulently, de bottom, the case ship’s fects ini authority above opinion quoted; favour it serves to yet show that the was doctrine this not then settled. About the time subject decided, the case of last case was Pickering Dowson, this vs. re was ship, in 4 Taun. in the Common decided Pleas. That ported sale was the of a with all also faults. copyA parti which, was delivered the seller to buyer, culars amongst fastened, copper and as things,' represented ship It was that, having recently thorough proven undergone repair. fastened, was not she ship copper knew defendant adhered Court doctrine Ellenbo leaky. Lord the seller Walters, held that was not Baglehole vs. rough, in cases -Now, observed, it will be these responsible. where was the matter subject thing cases ships, - such, had a full situation that buyer opportu examine truth nity representation; inspect Thé. meaning,, we decision in them. ground take Dowson, with all selling vs. says Justice, in Pickering Heath “ and Un- is, faults, eyes shall make use. the purchaser 2 ix COURT.
4a SUPRÉME Richard».] there This what are.’’ in. implies, to discover faults derstanding as to be in such situation enable must thing our opinion, *14 eyes understanding; accordingly, use of his him to make “ of the to ease, inspect purchaser in that the full opportunity is in the marginal the included examine the representation,” truth terms of the which ex- case, as of the proposition note the the seller empts liability. case is strikingly contradistinguished we think that this Now that in this the important particular; pur from-that in the most true, It is to and examine. full inspect chaser had not opportunity to have travelled in the that it some hundreds of miles the case which have been purchaser’s power would it was the mineso Virginia, examine Chancer-y ouoted Reports; has been from Johnson’s it was not intimate an idea that ne does but the Chancellor even Sherwood so : so also in case of vs. Sal to do himfor cessary the extraordinary mon, purchaser 5 Day’s Reports, might Court, the but the land; have examined reference diligence this remote situation of the whe”e, from the say,.that very subject, land, for the sale of cause, a is land, Or other any that, the seller is should the same reason it, there without viewing quality, its respecting a false- responsible affirmation any fraud. that wherever We down safely lay principle, think we a. may distance, remote which but at a not present, sale is made of.property he but which seen, buys has- never the the seller knows upon purchaser then its the seller, the relying truth, least, that the at effect, warranty; amounts to representation, seller No to make good representation. bound ,the reviewing applies which we have been cases reasoning of idea, that where case; subject such a they proceed upon and examination of the buyer, sale is inspection open, Kent, not to Chancellor examine. folly negligence is his own Commentaries, 484,485, said, has of his justly hi the volume second' to the length giving indemnity romantic go law does that against or a of indolence and careless indif- consequences folly, and accessible We ordinary means of information. ference cannot be made with any think that this imputation propriety n against-theappellee. subject of several hun- purchase had the seller him; it; never seen knew that dred miles from in this situation he- made a it-; had seen representation, never he- both letter, his exhibition of specimens; description faith of bought upon representation, appel- áppellee had that the read the letter seen appellee knowing lant and. double confidence samples: appellee had finally, ap- in his skill pellant ; first, integrity, his secondly, mining; his belief that had this admits double confidence'in him. If, under were not circumstances, these seller bound we we know not in what cases representation, ought apply TERM, [Smith Richards.] est.” We maxim, “fides servanda have and excellent well-known shown, have cases, and lipón principle, now compared our we will conclude refer But do not this. apply we those which have examining, later all case, to a than ring the view conclusive, think, we in favour reasoning vs. Kain, It the case of for Shepherd we have taken. case the breach of was a warranty, & 240. It Barn. Al. sale The advertisement for the the character a ship. vessel; fastened but there her as a sub described ship copper “ vessel, as she lies, with her stores now joined these words: faults, without allowance for defects to be taken all sold, trial, when was was that It appeared ship whatever.” fastened,, that she was not-what only partially copper also, trade', fastened vessel. called in the the amine"her situation. appeared copper a'full her, before he ex plaintiff, bought opportunity the advertisement must be said, The Court meaning faults which a will not be fas- copper seller responsible silver service sold with faults, tened and it turns vendor would have. ship Suppose *15 be out to can there the plated; doubt.that ' faults, mean, With all liable ? may -must Here, the described. the have with its being thing consistently ship was and therefore the all; not a fastened verdict ship copper the case that even where had a decides, plaintiff This full right". faults, did examination, term, not exempt opportunity seller being amounted had no- what defect but consistent with from- its' liability for'any effect, and, in that the described; description thing us, before In the case where to a warranty. examination, in that the case (and respect opportunity than the the terms just much in his .favour stronger cited,) sale, those which scribed'; hazard or risk, in our put. upon appellee-no but as it with the mine was de- being consistent such him from exempted in no degree that those terms liability had been mine such described, but if the for misrepresentation; him from then would have exempted liability failure in its anticipated produce. be, under representation to decide this sufficient, was untrue in material case, it is for us- delusion; influence of it. to know that The decree parts Circuit Court affirmed with costs. Story dissenting.— Justice Mr. I differ case have the misfortune to from a-majority In this of my bill set rescind an seeks .to aside-and executed brethren. tract, con- fraud, ground- gross premeditated upon .the one of great hazard founded in- confessedly speculation. fraud, The answer and insists scinding denies fully pointedly every allegation decree, most faith. perfect good re- by upon the contract, stated material of fraud charges affirms SUPREME COURT. Richards,] consideration, ¡record, careful the evidence the bill.- After for, that there is, just foundation .these proof my opinion charges. very'diflerent is-no the evidence, to review I do not propose, though' take itof from what has expressed opi- view are, Barbour; my brother and there facts nion many de%éréd force, struck mind with and which, have my great which .find, circumstances, importance I not deemed of equal regret silence, to sanction I am willing, im-.. brethren. my my which, cast so shade deep the appellant, putations upon his a- showsjas. been without the record hitherto character, stands acquitted stain of my opinion, '-appellant' reproach. fraud, of heated and deluded victim, imagina- if you please, dreams; but this he is tion, respect in golden indulging and none other. with appellee, same predicament dissented, stating agreed.altogether Mr. Justice McLean Mr. Story. Justice' facts, dissented, both as to the arid the law Mr. Justice Baldwin Court Justice Mr. as Barbour. stated in the opinion delivered of the United for the Court States the Circuit appeal On This cause came on be heard of New York. southern district -of Court the United Circuit the record from transcript York, and was argued by of New southern district States for the , consideration-whereof, it is and decreed adjudged counsel. On be, in this cause said Circuit-Court this-Court, and the decree of affirmed, with costs. is hereby same presented afterwards for the appellant counsel Note. —The unani- case, but Court a. re-hearing petition, praying ihpusly. the application. overruled notes sold ás bought, one-eighth and- one-sixth of four hundred fifty-six land, acres of hundred acres purchased of David deeds Moss, bearing date 1833; 17th both May, -parcelslying in of Goochland, county state of Virginia, called the Goochland mine. It declares that the receipts of the cash (that entitle notes) Richards one-sixth; (the one-eighth appellee) Guy portion