Sec 249

It may happen that all of a statement may be true, yet from the suppression of important qualifications, the effect is to leave a false impression. In this case the imperfect statement of truth is tantamount to a false statement.9 The mere allowing untrue, this Is a false representation.

When nondisclosure of qualifications leaves a statement another, also, without setting him right, to proceed on a false impression derived from the conduct of the party taking advantage of the mistake, estops such party from subsequently using this advantage;1 and the same rule applies where there is an intentional non-correction of an error into which the other party fell from misapprehension of a statement which was originally made without the intention to deceive.2 This is eminently the case when facts have occurred which have made a former statement, true when originally made, false at the time of a subsequent conversation, when the intermediate occurrence of these facts is suppressed.3 - It has been held in Massachusetts,4 where a father, in a letter, recommended his minor son as deserving of credit, but concealed the fact of the son's infancy, that if this concealment was with the view of getting credit for the son, knowing that if the fact of infancy had been disclosed no credit would have been given, this would be a fraud which would impose liability. And it has been ruled in England, that where a lessor of a mine did not disclose the fact that a material portion of the mine was under ground between high and low-water mark, and the lessee had no means of knowing this defect, this was ground for setting aside the lease.5 - As will be hereafter seen, buying without the intention of paying is a fraud which avoids a contract.6 But a suppression of the purchaser's insolvency is not such a fraud. Supposing there is an intention to pay, the fact that upon a full survey of his affairs the purchaser's solvency is questionable, is one he is not required to disclose.1 It is otherwise, however, if there is any active misleading of the vendor;2 and for B. to induce A. to accept in B.'s place C, an insolvent tenant, B. knowing and concealing C.'s insolvency, is an actionable deceit on the part of B.3 The suppression, also, by a vendor of hay, of the fact that it contains deleterious ingredients, makes him liable for any damage to the vendee's cattle.4 - It has been held in England that a non-disclosure of incumbrances, when the purchaser has no other means of determining the existence of such incumbrances than by the vendor, avoids a contract of sale when the purchaser is misled by the suppression.5 And this is a fortiori the case when there is a negation of the fact suppressed implied in the vendor's statements. Thus, where the vendor of a public house described it as in the occupation of a tenant, without stating that it was under lease to a brewer for a term of eight years to come, specific performance was refused as against a purchaser who had no notice of the lease.6 But in letting a house, the proposed tenant need not be instructed as to the condition of the repairs; this he must find out himself.7 A statement, however, as to repairs, subjects the maker to liability.8 Where, also, there is a registry of incumbrances, which it is the practice for purchasers to search, parties are not called upon to give in detail the burdens

1 Paddock v. Strobridge, 29 Vt. 470; Winsor v. Lombard, 18 Pick. 57; see Hill v. Gray, 1 Stark. 352; Ward v. Hobbs, L. R. 2 Q. B. D. 331.

2 Pollock v. Sullivan, 53 Vt. 507; Bennett v. Bean, 42 Mich. 346; cited supra, sec 217.

"It has been said that the doctrine of equitable estoppel involves a question of legal ethics, Welland Canal v. Hathaway, 8 Wend. 483, and this is repeated in Dezell v. Odell, 3 Hill, 225, and in Frost v. Ins. Co., 5 Denio, 154, and is allowed to prevent fraud and injustice." - Danforth, J., Andrews v. Ins. Co., 85 N. Y. 344.

3 Lobdell v. Baker, 1 Met. 193.

4 See supra, sec 221; infra, sec 254 et seq.

5 Emmerton v. Matthews, 7 H. & N.

586; Randall v. Newson, L. R. 2 Q. B. D. 102.

6 Ibid.; Emmerton v. Matthews, 7 H. & N. 586; supra, sec 224.

7 Supra, sec 221; Leake, 2d ed. 360, citing Shepherd v. Kain, 5 B. & Ald. 240.

8 Story's Eq. Jur. 12th ed. sec 192.

9 Supra, sec 217; Pidcock v. Bishop, 3 B. & C. 605; Peek v. Gurney, L. R. 6 H. L. 392; Clermont v. Tasburgh, 1 Jac. & W. 112; Mallory v. Leach, 35 Vt. 156; Moore v. Cains, 116 Mass. 396; Livingston v. Peru Co., 2 Paige, 390; Smith v. Ins. Co., 49 N. Y. 211; Kint-zing v. McElrath, 5 Barr, 467; Pearce v. Blackwell, 12 Ired. 49; Rhode v. Alley, 27 Tex. 443; Belden v. Henriquez, 8 Cal. 87.

1 Supra, sec 217; Hill v. Gray, 1 Stark. 434; Keates v. Cadogan, 10 C. B. 591; Pickard v. Sears, 6 A. & E. 474; Miles v. Furber, L. R. 8 Q. B. 77; Connihan v. Thompson, 111 Mass. 270; Rice v. Barrett, 116 Mass. 312; Bodine v. Kil-leen, 53 N. Y. 93; Chapman v. Rase, 56 N. Y. 137; Beaupland v. McKeen, 28 Penn. St. 124.

2 Reynell v. Sprye, 1 D. M. G. 709; Wald's Pollock, 492, citing Davies v. Ins. Co., L. R. 8 Ch. D. 475; Petti-grew v. Chellis, 41 N. H. 95. To same point see Barron v. Alexander, 27 Mo.

530; Cecil v. Spurger, 32 Mo. 462; Patterson v. Kirkland, 34 Miss. 423, and cases cited supra, & 217. See notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299.

3 Traill v. Baring, 33 L. J. C. 521; Hill v. Gray, 1 Stark. 352.

4 Kidney v. Stoddard, 7 Met. 252.

5 Mostyn v. West Mostyn Coal Co., L. R. 1 C. P. D. 145. See to same general effect Edwards v. McLeay, Coop. 308; 2 Swanst. 287; Leake, 2ded. 362.

6 Infra, sec 258.

1 Irving v. Motley, 7 Bing. 543; Whittaker ex parte, L. R. 10 Ch. 446; Biggs v. Barry. 2 Curt. 259; Reding-ton v. Roberts, 25 Vt. 686; Rowley v. Bigelow, 12 Pick. 307; Morrill v. Black-man, 42 Conn. 324; Lupin v. Marice, 6 Wend. 83; Andrew v. Dieterich, 14 Wend. 31; Hennequin v. Naylor, 24 N. Y. 139; Rodman v. Thalheimer, 75 Penn. St. 232; Talcott v. Henderson, 31 Oh. St. 162; Patton v. Campbell, 70 111. 72.

2 Infra, sec 251; Schweizer v. Tracy, 76 111. 345; Bell v. Ellis, 33 Cal. 620; Bryant v. Booth, 30 Ala. 311; Holland v. Anderson, 38 Mo. 55. See, as further sustaining the distinction in the text,.

Litchfield v. Hutchinson, 117 Mass. 195; Farrel v. Lloyd, 69 Penn. St. 239.

3 Bruce v. Ruler, 2 Man. & R. 3.

4 French v. Vining, 102 Mass. 135. As to suppression of facts going to wholesomeness of food, see supra, sec 222, 229.

5 Torrence v. Bolton, L. R. 8 Ch. 118; Drysdale v. Mace, 2 Sm. & G. 225; Shirley v. Stratton, 1 Bro. C. C. 440.

6 Caballero v. Henty, L. R. 9 Ch. 447; Leake, 2d ed. 363.

7 Keates v. Cadogan, 10 C. B. 591.

8 Lamare v. Dixon, L. R. 6 H. L. 414. See notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299; and see also supra, sec 217.

on their title. It is enough for them to refer either expressly or by implication to the recorded title. But even the fact that an incumbrance is recorded, so that a prudent inquirer would be notified of its existence, does not protect the party suppressing the fact of its existence from an action of deceit, or from the rescinding of the contract induced by the suppression, if the suppression involved in any way an active negation of the existence of the incumbrance.1