Subject to exceptions to be presently explained, a mere nondisclosure of fact, without more, is not fraud, whatever the intention may be. There must be some active attempt to deceive, either by a statement which is false, or by a representation, true as far as it goes, but accompanied with such a suppression of facts as to make it convey a false impression, or else there must be a concealment of facts which the party is under a duty to disclose.
Mere silence or nondisclosure of facts may be such a misrepresentation as will avoid a contract uberrima; fidei, but otherwise it generally has no effect, whatever may be the intention in failing to make the disclosure. Nondisclosure, even with intent to deceive, does not amount to a fraud which will render a contract voidable, or sustain an action for deceit, unless there is active concealment or a suppression of facts which there is a duty to disclose.93 For instance, in an English case, where the defendant had let to the plaintiff a house which he knew was required for immediate occupation, without disclosing that it was in a ruinous condition and unfit for habitation, it was held that an action for fraud would not lie. "It is not pretended," it was said, "that there was any warranty, express or implied, that the house was fit for immediate occupation; but it is said that, because the defendant knew that the plaintiff wanted it for immediate occupation, and knew that it was in an unfit and dangerous state, and did not disclose that fact to the plaintiff, an action of deceit will lie. The declaration does not allege that the defendant made any misrepresentation, or that he had reason to suppose that the plaintiff would not do what any man in his senses would do, viz. make proper investigation, and satisfy himself as to the condition of the house before he entered upon the occupation of it. There is nothing amounting to deceit." 94
93 Peek v. Gurney, L. R. 6 H. L. 403; Dambmann v. Schulting, 75 N. Y. 55; People's Bank of City of New York v. Bogart, 81 N. Y. 103, 37 Am. Rep. 481; Hadley v. Importing Co., 13 Ohio St. 502, 82 Am. Dee. 454; Rison v. Newberry, 90 Va. 513, 18 S. E. 916; Laidlaw v. Organ, 2 Wheat 178, 4 L. Ed. 214; Williams v. Spurr, 24 Mich. 335; Crowell v. Jackson, 53 N. J. Law, 656, 23 Atl. 426; Cleaveland v. Richardson, 132 U. S. 318, 10 Sup. Ct 100, 33 L. Ed. 384; Cochrane v. Halsey, 25 Minn. 52; West v. Anderson, 9 Conn. 107, 21 Am. Dec. 737; Juzan v. Toulmin, 9 Ala. 662, 44 Am. Dec. 448; Codding-ton v. Goddard, 16 Gray (Mass.) 463. Failure of the purchaser of land to disclose to the vendor the fact that there is mineral under it does not amount to fraud. Harris v. Tyson, 24 Pa. 347, 64 Am. Dec. 661; Butler's Appeal, 26 Pa. 63; Smith v. Beatty, 37 N. C. 456, 40 Am. Dec. 435. See, also, as to concealment by purchaser, Neill v. Shamburg, 158 Pa. 263, 27 Atl. 992; ante, p. 270, note 85. See "Contracts," Dec. Dig. (Key-No.) § 9!,; Cent. Dig. §§ 420-J,30.
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The fact that the purchaser of goods fails to disclose the fact that he is insolvent does not amount to fraud if he intends to pay for them, and is not asked as to his financial condition.95 If, however, at the time of the purchase, he does not intend to pay, he is guilty of fraud, for he impliedly represents that he does intend to pay;96 and it has been held by a number of courts that.
94 Keates v. Lord Cadogan, 10 C. B. 501. See, also, Fisher v. Lighthall, 4 Mackey (15 D. C.) 82, 54 Am. Rep. 258; Lucas v. Coulter, 104 Ind. 81, 3 N. E. 622; Foster v. Peyser, 9 Cush. (Mass.) 242, 57 Am. Dec. 43. See "Con-tracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430.
95 Talcott v. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Powell v. Brad-lee, 9 Gill & J. (Md.) 220; Morrill v. Blackman, 42 Conn. 324; Zucker v. Karpeles, 88 Mich. 413, 50 N. W. 373; Hotchkin v. Bank, 127 N. Y. 329, 27 N. E. 1050; Le Grand v. Bank, 81 Ala. 123, 1 South. 460, 60 Am. Rep. 140; Reticker v. Katzenstein, 26 I11. App. 33; Bidault v. Wales, 20 Mo. 546, 64 Am. Dec. 205; Wilson v. White, 80 N. C. 280. See "Sales," Dec. Dig. (Key-No.) § 45; Cent. Dig. § 94.
96 Talcott v. Henderson, 31 Ohio St. 162, 27 Am. Rep. 501; Stewart v. Emerson, 52 N. H. 301; Donaldson v. Farwell, 93 U. S. 633, 23 L. Ed. 993; Ex parte Whittaker, 10 Ch. App. 446; Burrill v. Stevens, 73 Me. 395, 40 Am. Rep. 366; Belding Bros. & Co. v. Frankland, 8 Lea (Tenn.) 67, 41 Am. Rep. 630; Harris v. Alcock, 10 Gill & J. (Md.) 226, 32 Am. Dec. 158; Wilmot v. Lyon, 49 Ohio St. 296, 34 N. E. 720; Nichols v. McMichael, 23 N. Y. 266, 80 Am. Dec. 259; Farwell v. Hanchett, 120 I11. 573, 11 N. E. 875; Brower v. Goodyer, 88 Ind. 572; Ross v. Miner, 64 Mich. 204, 31 N. W. 185; Id., 67 Mich. 410, 35 N. W. 60; Ayres v. French, 41 Conn. 142; Jordan v. Osgood, 109 Mass. 457, 12 Am. Rep. 731; Dow v. Sanborn, 3 Allen (Mass.) 181; Yea-ger Milling Co. v. Lawler, 39 La. Ann. 572, 2 South. 398; Allen v. Hartfield, 76 I11. 358; Devoe v. Brandt, 53 N. Y. 462; Hennequin v. Naylor, 24 N. Y. 139; Carnahan v. Bailey (C. C.) 28 Fed. 519; Fechheimer v. Baum (C. C.) 37 Fed. 167, 2 L. R. A. 153; Shipman v. Seymour, 40 Mich. 274; Wright v. Brown, 67 N. Y. 1; Bidault v. Wales, 20 Mo. 546, 64 Am. Dec. 205; Des Farges v. Pugh, 93 N. C. 31, 53 Am. Rep. 446. There are a few decisions to the contrary. Smith v. Smith, 21 Pa. 367, 60 Am. Dec. 51; Bughman v.
if he has no reasonable expectation of being able to pay, it is equivalent to an intention not to pay.97
Active efforts to conceal a fact - as, for instance, where obstacles are thrown in the way to prevent the other party's inquiries from resulting in its discovery, or his attention is diverted for such a purpose - are equivalent to a false representation.98 So, also, if a person makes a representation as to facts which is true as far as it goes, but intentionally suppresses other facts so as to make the representation convey a false impression, this is a false representation, and not a mere nondisclosure. The concealment or withholding of that which is not stated makes that which is stated absolutely false.99