Sec 238

It is not necessary, to impose liability for a fraudulent misrepresentation, or to avoid a contract induced by it, that it should have been made for the purpose of gaining a pecuniary benefit. It is enough if it be uttered for the purpose of defrauding the party injured.1 Hence that it should include an intention to benefit the party making the representation is not essential to constitute liability.2

Sec 239

When the question of fraudulent intention is material, such intention is to be proved inductively. No man who is about to cheat proclaims his intention, and even if he did this would not close the matter, as an avowal of an intention to cheat would in most cases be regarded as merely a cheating avowal. The intention must be proved inductively from all the circumstances of the case. And whatever facts go to logically prove or disprove the hypothesis of fraud are relevant on such an issue.1 Hence collateral frauds may he proved when part of a system with that under investigation.2 But system must be first proved to make such evidence admissible.3 - It is not necessary that 'fraud, when alleged in a civil issue, should be proved beyond reasonable doubt, even though involving an indictable offence. It will be enough if it is established by preponderance of proof.4 The burden, however, is on the party setting up fraud.1 - If a contract is fair and honest when made, it cannot be impugned by proof of subsequent fraudulent intent.2

Fraud need not be lucri causa.

Fraudulent intention to be inductively proved.

97; Crocker v. Lewis, 3 Sumn. 8; Bruff v. Mali, 36 N. Y. 200; Bartholomew v. Bentley, 15 Ohio, 660.

In Bank of Montreal v. Thayer, 2 McCrary, 1, the receiver of a railroad executed and placed upon the market certain certificates payable to A. or hearer, which contained upon their face certain false representations, intended to deceive whoever might purchase the same. It was held that a bona fide purchaser, before maturity and without notice, relying upon such fraudulent representations, might recover in an action for damages, although such receiver had no purpose to defraud and deceive such specific purchaser when he executed the said certificates. It was further ruled that the fact that the payee A. participated in the fraud would not relieve the maker from liability, nor render it necessary that such payee should be joined in the action as a party defendant. It was also held that the representations contained in such certificates were not warranties upon which an action could be maintained by the purchaser. See notes to Chandeler v. Lopus, 1 Smith L. C. 7th Am. ed. 299 et seq.; as to parties, see infra, sec 781 et seq.

1 2 Kent, Com. 489; Story on Cont. sec 642; Pasley v. Freeman, 3 T. R. 51; Foster v. Charles, 6 Bing. 396; Stiles v. White, 11 Met. 356; Collins v. Den-ison, 12 Met. 549; Benton v. Pratt, 2 Wend. 385; Allen v. Addington, 7 Wend. 9; Hubbell v. Meigs, 50 N. Y. 480; Young v. Hall, 4 Ga. 95. See, however, contra, Wilkin v. Tharp, 55 Iowa, 609.

2 Foster v. Charles, 6 Bing. 396; 7 Bing. 105; Wilde v. Gibson, 1 H. L. C. 605. That the test is injury to the party defrauded, not gain to the party defrauding, see infra, sec 243. That a money consideration will not validate a fraudulent deed, see infra, sec 377 a; Levick v. Brotherline, 74 Penn. St. 149.

1 Wh. on Ev. sec 33; Foster v. Charles, 6 Bing. 396; 7 Bing. 105; Tapp v. Lee, 3 B. & P. 367; Conant v. Jackson, 16 Vt. 335; Collins v. Denison, 12 Met. 549; Skinner v. Flint, 105 Mass. 528; Horton v. Weiner, 124 Mass. 92; Cary v. Hotailing, 1 Hill, 311; Hall v. Erwin, 66 N. Y. 649; Hubbell v. Meigs, 50 N. Y. 480; Livermore v. McNair,.

34 N. J. Eq. 478; Reed v. Lawton, 2 Watts, 56; Boyd v. Browne, 6 Barr, 310; Lowry v. Coulter, 9 Barr, 349; Garrigues v. Harris, 17 Penn. St. 344; Brown v. Shock, 77 Penn. St. 471; Battles v. Laudenslager, 84 Penn. St. 446; Goshorn v. Snodgrass, 17 W. Va. 717; Massey v. Young, 73 Mo. 269; O'Donnell v. Segar, 25 Mich. 367; Stone v. Wood, 85 111. 603; White v. White, 89 111. 460; Brink v. Black, 77 N. C. 59; Blackwell v. Cummings, 68 N. C. 121; Thorpe v. Thorpe, 12 S. C. 154; Southern Life Ins. Co. v. Wilkinson, 53 Ga. 535; Nelson v. Wood, 62 Ala. 175; Smalley v. Hale, 37 Mo. 102; King v. Moon, 42 Mo. 551; Hopkins v. Sievert, 58 Mo. 201; State v. Merritt, 70 Mo. 275; Strong v. Hines,.

35 Miss. 201; Thompson v. Shannon, 9 Tex. 536; see Young v. Hall, 4 Ga. 95. As to inadequacy of price, see supra, sec 165. That the question is for the jury, see McMichael v. McDermott, 17 Penn. St. 353; Vallance v. Ins. Co., 42 Penn. St. 441; Ehrisman v. Roberts, 68 Penn. St. 308.

2 Wh. on Ev. sec 28 et seq.; Hunt-ingford v. Massey, 1 F. & F. 690; Lincoln v. Claflin, 7 Wall. 132; Cragin v. Tarr, 32 Me. 55; Knight v. Heath, 23 N. H. 410; Pierce v. Hoffmann, 24 Vt. 524; Tyson v. Booth, 100 Mass. 258; Haskins v. Warren, 115 Mass. 514; Waters Co. v. Smith, 120 Mass. 144; Horton v. Weiner, 124 Mass. 92; Snell v. Moses, 1 Johns. 96; Benham v. Cary, 11 Wend. 83; Cary v. Hotail-ing, 1 Hill, 317; Hall v. Erwin, 66 N. Y. 649; Woods v. Gummert, 67 Penn. St. 136; Stewart v. Fenner, 81 Penn. St. 177; McAleer v. Horsey, 35 Md. 439; Stone v. Wood, 85 111. 603; Hunter v. Hunter, 10 W. Va. 321; Brink v. Black, 77 N. C. 59; King v. Moon, 42 Mo. 551.

3 Jordan v. Osgood, 109 Mass. 457; Edwards v. Warner, 35 Conn. 517; Booth v. Powers, 56 N. Y. 22, and cases cited Wh. on Ev. sec 27; City Nat. Bk. v. Hamilton, 34 N. J. Eq. 158; Liver-more v. McNair, 34 N. J. Eq. 478.

4 Infra, sec 338; Wh. on Ev. sec 1245; see Abbey v. Dewey, 25 Penn. St. 413; Young v. Edwards, 72 Penn. St. 257; Groshorn v. Snodgrass, 17 W. Va. 717; Bixby v. Carskadden, 55 Iowa, 533; Bullard v. Creditors, 56 Cal. 600. That this proof should be clear, see Kain v. Weigley, 22 Penn. St. 179; Bentz v. Rockey, 69 Penn. St. 71.