Sec 247

Nor is a contracting party bound by the misstatements of a third person, unless agency or confederacy be proved.6

1 Williams's case, L. R. 9 Eq. 225, n.; Kintrea ex parte, L. R. 5 Ch. 101.

2 Supra, sec 242 a; Wald's Pollock, 500, citing Reynell v. Sprye, 1 D. M. G. 708; Hough v. Richardson, 3 Story, 659; Cabot v. Christie, 42 Vt. 121; Matthews v. Bliss, 22 Pick. 48; Camp v. Pulver, 5 Barb. 91. To same effect see Slaughter v. Gerson, 13 Wall. 379; Bowman v. Caruthers, 40 Ind. 90; First Nat. Bank v. Yocum, 11 Neb. 328; Noel v. Horton, 50 Iowa, 687; Elliot v. Boaz, 9 Ala. 772.

3 Westbury v. Aberdein, 2 M. & W. 267; Lindenan v. Desborough, 8 B. & C. 586; Hough v. Richardson, 3 Story, 659; McAleer v. Horsey, 35 Md. 439; Printup v. Fort, 40 Ga. 276.

4 Story's Eq. Jur. 12th ed. sec 190; Geddes v. Pennington, 5 Dow. 159; Winch v. Winchester, 1 Ves. & B. 375; Foster v. Charles, 6 Bing. 396; Slaughter v. Gerson, 13 Wall. 379; Morris Canal Co. v. Emmett, 9 Paige, 168; McAleer v. Horsey, 35 Md. 439; Hall v. Johnson, 41 Mich. 286; Bowman v. Caruthers, 40 Ind. 96; Winston v. Gwathmay, 8 B. Mon. 19.

5 McAleer v. Horsey, 35 Md. 439; Winston v. Gwathmay, 8 B. Mon. 19.

6 Pollock, 3d ed. 542, citing Sturge v. Starr, 2 My. & K. 195; Wharton on Agency, sec 160; Leake, 2d ed. 386-7; Fairlie v. Hastings, 10 Ves. 126; Thomas v. Roberts, 16 M. & W. 778; Chicago v. Greer, 9 Wall. 726; Ins. Co. v. Mahone, 21 Wall. 152; Goodman v. Eastman, 4 N. H. 458; Root v. French, 13 Wend. 572; Kingsland v. Pryor, 33 Oh. St. 19; Compton v. Bank, 96 111. 301; Campbell v. Murray, 62 Ga. 86; Lindsay v. Veasy, 62 Ala. 421; and other cases cited Wh. on Ev. sec 1175..

Thus a party effecting a life insurance on the life of another is not prejudiced by such other person's independent false statements, unless concert be established, or such liability is specially imposed by the policy.1 "There is no case in which a fraud intended by one man shall overturn a fair and bona fide contract between two others."2 A bank, to take another illustration, which discounts notes, is not affected by frauds between the parties to such notes;3 nor is an assignee in trust affected by a fraud between one of the trustees and a stranger.4 On the same reasoning the representations of an agent outside of the range of his office, do not bind his principal.5 And, as a general rule, a false representation, to be imputable, must have been made with intent to be acted on by the party claiming redress.6

Sec 248

Fraud may be committed as effectually by conduct involving a silent distortion of the truth as by words.7 A party, for instance, who seeks credit on the basis of being in a particular profession, may, by adopting the dress or other distinctive marks of that profession, assert his connection with it as emphatically as he could by making the claim in words.8 Silence, also, may be a contractual admission as effectually as speech, when it involves assent to another person's statements.9 A statement of quality, also, is implied in offering for sale at a particular price. A jeweller who sells a ring, apparently golden, at the price of gold, makes the assertion that the ring is of gold as distinctly as if he said, "this is gold."1 A man, also, who courts a woman in view of marriage, implicitly states that he is an unmarried man capable of marrying.2 A party, also, procuring the endorsement of another in order to negotiate a bill, is understood to affirm that the person so endorsing is competent to endorse.3 And when an article is sold for a specific purpose, the suppression by the vendor of a fact that makes it unfit for such purpose may be an actionable deceit.4 A material latent defect, such is the general rule, in a chattel, must be disclosed when it is offered for sale, or the sale will be avoided;5 and though there is in a sale of chattels no implied warranty against latent defects,6 yet a chattel must answer the general object for which it is sold.7 In fine, " misrepresentations may be as well by deeds or acts as by words; by artifices to mislead as well as by positive assertion."8

Party not bound by third party's misstatements or frauds.

Fraud may be in conduct as well as in words.

1 Wheelton v. Hardisty, 8 E. & B. 232.

2 Buller, J., Master v. Miller, 4 T. R. 337.

3 Irvine v. Bank, 2 W. & S. 190.

4 McGuire v. Faber, 25 Penn. St. 436.

5 Infra, sec 270.

6 Supra, sec 237; see notes to Chande-ler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299.

7 Supra, sec 217. In the Roman law, see to this effect L. 43, sec 2; L. 66, sec 1; D. de contrah. emt. XVIII. 1. So in our own law: Lee v. Jones, 17 C. B. N. .S. 482; Crawshay v. Thompson, 4 M.

& G. 387; Lobdell v. Baker, 1 Met. 193; McCall v. Davis, 56 Penn. St. 435; Croyle v. Moses, 90 Penn. St. 250.

8 R. v. Giles, L. & C. 502; 10 Cox C. C. 44; R. v. Hunter, 10 Cox C. C. 642; R. v. Cooper, L. R. 2 Q. B. D. 510; R. v. Story, R. & R. 81; R. v. Barnard, 7 C. & P. 784; R. v. Bull, 13 Cox C. C. 608; Wh. Cr. L. 8th ed. sec 1170; Wh. Cr. Ev. sec 679; see Laidlaw v. Organ, 2 Wheat. 178; Mizner v. Russell, 29 Mich. 229; Chisolm v. Gadsden, 1 Strobh. 220.

9 Wh. on Ev. sec 1136. See as to qualification, infra, sec 249 et seq.