The representation must have been made with the intention that it should be acted upon by the injured party.46 Another statement of this rule is that the representation must be made as part of the same transaction.47

St. Rep. 485; Montreal Lumber Co. v. Mibills, 80 Wis. 540, 50 N. W. 507; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313; Knappen v. Freeman, 47 Minn. 491, 50 N. W. 533; State v. Cass, 52 N. J. Law, 77, 18 Atl. 972; Hamlin v. Abell, 120 Mo. 188, 25 S. W. 516; Rothschild v. Mack, 115 N. Y. 1, 21 N. E. 726; Hadcock v. Osmer, 153 N. Y. 604, 47 N. E. 923; Braley v. Powers, 92 Me. 203, 42 Atl. 362; Walters v. Eaves, 105 Ga. 584, 32 S. E. 609; Simon v. Rubber Shoe Co., 105 Fed. 573, 44 C. C. A. 612, 52 L. R. A. 745; New London Water Com'rs v. Robbins, 82 Conn. 623, 74 Atl. 938; Tolley v. Poteet, 62 W. Va. 231, 57 S. E. 811; Grim v. Byre, 32 Grat. (Va.) 293. The fraud in such a case "consists in stating that the party knows the thing to exist when he does not know it to exist; and, if he does not know it to exist, he must ordinarily be deemed to know that he does not. Forgetfulness of its existence after a former knowledge, or a mere belief of its existence, will not warrant or excuse a statement of actual knowledge." Chatham Furnace Co. v. Moffatt, supra. And see Alvarez v. Brannan, 7 Cal. 503, 68 Am. Dec. 274. See "Contracts," Dec, Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430; "Fraud," Dec. Dig. (Key-No.) § 13; Cent. Dig. §§ 3-5.

43 Derry v. Peek, 14 App. Cas. 337; Merwln v. Arbuckle, 81 I11. 501; Cox v. Highley, 100 Pa. 249; Lamberton v. Dunham, 165 Pa. 129, 30 Atl. 716; Wilcox v. University, 32 Iowa, 367; Lord v. Goddard, 13 How. 198, 14 L. Ed. Ill; Pettigrew v. Chellis, 41 N. H. 95; Scroggin v. Wood, 87 Iowa, 497, 54 N. W. 437; Sylvester v. Henrich, 93 Iowa, 4S9, 61 N. W. 942; Morton v. Scull, 23 Ark. 289; Farmers' Stock Breeding Ass'n v. Scott, 53 Kan. 534, 36 Pac, 978. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430.

44 Anson, Cont. (8th Ed.) 172.

45 Hanscom v. Drullard, 79 Cal..234, 21 Pac. 736. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430; "Fraud," Dec. Dig. (Key-No.) § 22; Cent. Dig. §§ 19-23.

46 Buschman v. Codd, 52 Md. 202; Humphrey v. Merriam, 32 Minn. 197, 20 N. W. 138; Bach v. Tuck, 57 Hun, 588, 10 N. Y. Supp. 884; Carter v. Harden, 78 Me. 528, 7 Atl. 392; Thorp v. Smith, 18 Wash. 277, 51 Pac, 381. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430; "Fraud," Dec Dig. (Key-No.) § 4; Cent. Dig. § 2.

47 Pollock, Cont (3d Ed.) 545; Barnett v. Barnett, 83 Va. 504, 2 S. E. 733. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430.

The representation need not, indeed, have been made to the injured party himself. If a person, desiring to enter into a contract with another, should make a representation to a third person with the intention that it should reach the ears of such other person, and be acted upon by him, in entering into the contract, this would constitute a fraudulent misrepresentation equally as if it had been made to the other party.*8 Where a gun was sold to a man for the use of himself and sons, the seller falsely representing that it had been made by a certain maker, and was a good, safe, and secure gun, it was held that a son of the buyer who was injured by the gun's exploding could sue the seller for deceit. In that case it was argued that the defendant could not be held liable to the plaintiff for a representation not made to him; but the court held that inasmuch as the gun was sold to the father to be used by the plaintiff, and there was a false representation to effect the sale, and "as there was fraud, and damage the result of that fraud, not from an act remote and consequential, but one contemplated by the defendant at the time as one of its results," the defendant was liable.49 So, also, where a merchant makes a false statement as to his financial responsibility to a mercantile agency for the purpose of procuring credit, and customers of the agency, in reliance thereon, give him credit, and are defrauded, they may maintain an action of deceit against him, or avoid their contract with him on the ground of fraud.53

The representation, however, must have been made with the intention that it should be acted upon by the injured party in the manner that occasions the injury.51 Thus, where the directors of a company made false statements in the prospectus of the company, which would have made them liable to the original allotters of shares, they were held not to be liable to persons who subsequently purchased shares which came into the market, on the ground that their intention to deceive could not be supposed to extend beyond the original applicants for shares.52 The directors in such a case would be liable to the original applicants for shares, relying on the prospectus."

48Langridge v. Levy, 2 Mees. & W. 519; Snow v. Judson, 38 Barb. (N. Y.) 210; Benton v. Pratt, 2 Wend. (N. Y.) 385, 20 Am. Dee. 623; Chubbuck v. Cleveland, 37 Minn. 466, 35 N. W. 362, 5 Am. St Rep. 864; Waterbury v. Andrews, 67 Mich. 281, 34 N. W. 575; Hubbard v. Weare, 79 Iowa, 678, 44 N. W. 915. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 1,20-480.

49 Langridge v. Levy, 2 Mees. & W. 519. See "Sales," Dec. Dig. (Key-No.) § 40; Cent. Dig. §§ 79-85.

50 Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, 38 Am. Rep. 389; Mooney v. Davis, 75 Mich. 188, 42 N. W. 802, 13 Am. St Rep. 425; Furry v. O'Connor, 1 Ind. App. 573, 28 N. E. 103; Hincbman v. Weeks, 85 Mich. 535, 48 N. W. 790; Gainesville Nat Bank v. Bramberger, 77 Tex. 48, 13 S. W. 959, 19 Am. St Rep. 738; P. Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; STEVENS v. LUDLUM, 46 Minn. 160, 48 N. W. 771, 13 L. R. A 270, 24 Am. St Rep. 210, Throckmorton Cas. Contracts, 192. See "Sales," Dee. Dig. (Key-No.) §§ 46, 47; Cent. Dig. §§ 95, 96.

51 Barry v. Crosky, 2 Johns. & H. 1. See "Fraud," Dec Dig. (Key-No.) 5§ 21, 22; Cent. Dig. §§ 9-23.