Chapter III. As to commendatory statements by vendor. Vendor not prejudiced by mere puffing state ments. If amounting to mere ex pressions of not to state (2.) As to commendatory and other similar statements by a vendor. It may be laid down as a general rule, that more expressions of praise or affirmations of value, such as, that an estate, sold as a renewable leasehold, is "nearly equal to freehold ;"(e) or that land, in fact imperfectly watered, is "uncommonly rich water meadow land;"(ƒ) that a house of mean character, is "a desirable residence for a family of distinction ;"(g) will not, however objectionable they may be in point of morality, avoid the contract in Equity. And the rule, perhaps, extends to any statement by a opinion, and vendor, which is, in effect, a mere expression of his own ment of facts. opinion, and does not amount to an assertion of an inde[*44] pendent and ascertainable fact: such as, a statement, on the sale of an advowson, that an avoidance is "likely to occur soon;"(h) or, on the sale of renewable leaseholds, that the fine payable is "small;"(i) if a purchaser choose to rely on the vendor's opinion as to what is a small fine, or a probability of speedy avoidance, he does so at his peril. What misrepresentation will at law avoid the contract, or sustain an action. And in the strong case of the vendor of an annuity stating that the grantor, (then in prison for debt and insolvent,)" was a man of large property," he was held not liable to an action of deceit at law.(j)[1] (e) Fenton v. Browne, 14 Ves. 144. [1] The rule of the civil law was, simplex commendatio, non obligat. If the seller merely made use of those expressions which are usual to sellers, who praise at random what they are anxious to sell, the buyer, who ought not to have relied upon such vague expressions, could not, upon this pretext, procure the sale to be dissolved. The same rule prevails in our law. It has even been held that an action could not be maintained against a vendor for having falsely affirmed that a person bid a particular sum for the estate although the person to whom the representation was made, was thereby induced to purchase it, and was deceived in the value. Nor can a purchaser obtain any relief against a vendor, for false affirma ment that a healthy one, surable at Where, however, on the sale of a life interest, the par- Chapter III. ticulars described the tenant for life as a very healthy Mis-stategentleman aged forty-eight, whose life was insurable, and life is a an insurance was guaranteed at five guineas per cent., not qualified and it turned out that the vendors had recently insured that it is inthe life at a rate less than five guineas per cent., but exceeding the rate usually charged on healthy lives, their bill was dismissed with costs, although the purchaser admitted that he knew five guineas to be more than the usual premium.(k) specified rate. And a false statement, by a vendor, of an independent valuation of fact, as, that the property has been valued by a surveyor veyor. estate by sur chase of es person. between the two last at a specified sum,—will, if relied on by the purchaser, (7) avoid the contract at law and in equity;(m) and might, perhaps, sustain an action at law: but a vendor is not offer for pur liable to such action for the false assertion that a third tate by third person has offered a specified sum for the estate.(n) There would seem to be a clear ground of distinction Difference between the two last cases; for a purchaser might natu- cases. rally consider the opinion of a surveyor to indicate something like the market value of the property, although he might attach little importance to the bare offer by an individual, possibly made hastily and soon repented of: though certainly, in the reported case, the purchaser seems to have been directly influenced by the mis-statement. And a false statement that a specified rent is paid for Purchaser (k) Brealey v. Collins, You. 317. (1) See Clapham v. Shillito, 7 Beav. 146. (m) Buxton v. Lister, 3 Atk. 386; Small v. Attwood, 1 You. 407; Sug. 4; Lord Brooke v. Rounthwaite, 5 Hare, 298. (n) Sug. 3. tion of value; it being deemed the purchaser's own folly to credit a nude assertion of that nature. Besides, value consists in judgment and estimation, in which men may differ. And in an action, it is not sufficient to show, that the vendor was guilty of a misrepresentation; but it must be shown that some deceit was practised for the purpose of throwing the party off his guard. See Davis v. Meeker, 5 Johns. Rep. 354; Marshall v. Peck, 1 Dana's Ky. Rep. 611; Dugan v. Cureton, 1 Arkansas Rep. 41 ; Morrill v. Wallace, 9 New Hampshire Rep. 111; Oneida Manu. Co. v. Lawrence, 4 Cowen's Rep. 440; Saunders v. Hatterman, 2 Iredell, N. C. Rep. 32; Cross v. Peters, 1 Greenleaf, Maine Rep. 376; Seymour v. Delancy, 6 Johns. Ch. Rep. 222. [*45] when liable although statement not relied on. Chapter III. the premises,(o) has been held to subject the vendor to an action at law, although the purchaser did not rely on his statement, but made inquiries of other persons; who, it is presumed, also deceived him.[1] Stranger when liable ment. And the same liability is incurred by a stranger, who for mis-state even from mere wantonness, intending to deceive, although without any view to gain, makes a false representation to a purchaser as to the value or rent of the property; nor is it material that the sale is by auction instead of private contract ;(p) Sir E. Sugden says,(q) citing Sir W. Grant, "In cases of this nature it will be sufficient to show, 1st, that the fact as represented is false; 2ndly, that the person making the representation had a knowledge of a fact contrary to it."(r) The rule is otherwise laid down. by Mansfield, C. J., who says, that "it signifies nothing whether a man represents a thing to be different from what he knows it to be, or whether he makes a representation which he does not know at the time to be true or false, if in point of fact it turns out to be false:"(s) the better opinion, however, seems to be, that, in order to susThere must tain an action at law, there must be actual fraud; that is, either an assertion, (with or without motive,) of what the party knows to be untrue,(t) or a communication, *for a deceitful and fraudulent purpose, of that which is in fact untrue, although he may not know it to be so.(u)[1] be actual fraud; semble. [*46] (0) Lysney v. Selby, Ld. Raymond, 1118. (p) Bardell v. Spinks, 2 Car. and K. 646. (r) Burrowes v. Lock, 10 Ves. 476. (s) Schneider v. Heath, 3 Camp. 506; and see 1 Bro. C. C. 546; 3 Ves. & B. 111, and Pearson v. Morgan, 2 Bro. C. C. 388. (t) See Lord Campbell's judgment in Wilde v. Gibson, 1 H. L. C. 633 ; and cases cited infra, n.(u) (u) See Foster v. Charles, 6 Bing. 396; Polhill v. Walter, 3 B. & Ad. 114; Shrewsbury v. Blount, 2 Man. & Gr. 475; Freeman v. Cooke, 6 Dow. & L. 187; Taylor v. Ashton, 11 Mee. & W. 401. [1] It seems that a material misrepresentation of a fact, by mistake, and upon which the other party is induced to act, is a ground for relief in equity, equally as if it had been a wilful and false assertion. M' Ferran v. Taylor, 3 Cranch. 270; Rosevelt v. Fulton, 2 Cowen, 134; Lewis v. M Lemore, 10 Yerger, 206. [1] This principle was first established in England, in the case of Par A representation that a man is able to answer an obli- Chapter III. gation is not binding unless in writing.(v) Guarantee of solvency must be in (3.) As to concealment and disclosure of advantages by writing. the purchaser. A purchaser need not disclose any fact, unknown to the vendor, which increases the value of the property itself; e. g. the existence of a mine.(w)[2] But anything, even a mere word, which tends to lead the vendor upon such a point, will deprive the chaser of the assistance of a Court of Equity.(x)[3] As to concealment and disclosure of advantages ser. by purcha Purchaser need not disclose concealed ad vantages. mispursue in equity (v) 9 Geo. IV. c. 14, s. 6: see Haslock v. Fergusson, 7 Ad. & El. 86. (w) 2 Bro. C. C. 420; Jac. 178. (x) Jac. 178. ley v. Freeman, 3 Term Rep. 51, and the doctrine of it, is now well settled both in the English and American jurisprudence. Upton v. Vail, 6 Johns. Rep. 181; Bean v. Herrick, 3 Fairfield, 262; Gallagher v. Brunel, 6 Cowen's Rep. 346; Benton v. Pratt, 2 Wendell's Rep. 385; Allen v. Addington, 7 Wendell's Rep. 1; S. C. 11 Wendell, 374; Wise v. Wilcox, 1 Day's Rep. 22; Russell v. Clark, 7 Cranch's Rep. 92; Hart v. Tallmadge, 2 Day's Rep. 381; Patten v. Gurney, 17 Mass. Rep. 182. The principle is, that fraud, accompanied with damage, is a good cause of action; and the solidity of the principle, says Kent, was felt and acknowledged by the writers on the civil law. (2 Kent's Com. 490.) Misrepresentation, without design, is not sufficient for an action. But if recommendation of a purchaser, as of good credit, to the seller, be made in bad faith, and with knowledge that he was not of good credit, and the seller sustains damage thereby, the person who made the representation, is bound to indemnify the seller. Ib. [2] There are many duties that belong to the class of imperfect obligations which, though binding in conscience, human laws cannot undertake directly to enforce. It is obvious, that all the material facts ought to be known to both parties, to render the agreement fair, and just in all its parts; and it is against all the principles of equity that one party, knowing a material ingredient in an agreement, should be permitted to suppress it, and still call for a specific performance. See Parker v. Grant, 1 Johns. Ch. Rep. 630. [3] In Turner v. Harvey, 1 Jacob's Rep. 169, relief was given in equity against a contract, where the purchaser knew that the vendors (who were assignees of a bankrupt) were ignorant of a circumstance considerably increasing the value of the property. And while it was admitted to be the general rule, that the purchaser was not bound to give the vendor information as to the value of the property, yet it was said that very little was sufficient to affect the application of the principle, as if a single word be dropped tending to mislead the vendor. See Farnam v. Brooks, 9 Pick. Rep. 212. But cannot if he mislead the vendor. Chapter III. And must disclose fact increasing vendor's interest in the property. And a purchaser is bound, in equity, to disclose any fact, unknown to the vendor, which increases his interest in the property; e. g. the actual (y) or imminent(≈) death of a prior life tenant. As to depre- (4.) As to depreciatory remarks, &c., by the purchaser. ciatory re marks, &c., by purcha ser. A purchaser who has misrepresented the property to a third person desirous of purchasing it, cannot enforce the the property contract in equity.(a) Purchaser to intended ble to an ac tion at law. [*47] A purchaser, however, is not liable to an action at law for having depreciated the value of the property, or the vendor's chance of sale:(b) nor will an action lie against *a stranger for preventing a sale by giving notice of his claim upon the estate, unless it be shown that such notice was given maliciously :(c) and, in any case, in order to Slander of ti- support an action for slander of title, the plaintiff must ger. prove falsehood, malice, and special damage.(d) tle by stran Agreement with, not to at sale per It appears that an agreement between two persons, not bid against to bid against each other at an auction, is not illegal; and missible. forms a good consideration for an agreement giving to the party withdrawing his opposition at the auction a right of pre-emption over other property.(e) Effect of written on prelimi It may be remarked that, when a written agreement agreement, between the parties has once been entered into, all prenary negoti- vious representations become immaterial, except for the purpose of defence in equity, (f) or of rebutting a defence, and so maintaining the written contract. ations. (y) Turner v. Harvey, Jac. 169; and see Davies v. Cooper, 5 Myl. & C. 270. (z) Ellard v. Lord Llandaff, 1 Ball & B. 241. (a) Howard v. Hopkyns, 2 Atk. 371. (b) Vernon v. Keys, 12 East, 632; see p. 638. (c) See Sug. 423, and cases cited. (d) Brook v. Rawl, 19 L. J. 114, Exch. (e) Galton v. Emuss, 1 Coll. 243. (f) Haynes v. Hare, 1 H. Bl. 664. |