"Misrepresentation," as the term is here used, must be distinguished from "fraud," with which we are to deal presently. Misrepresentation means an innocent misstatement or nondisclosure of facts, while fraud consists in representations which are known to be false, or which are made in reckless ignorance of their truth or falsity, or in nondisclosure or concealment of facts under such circumstances that it amounts to a representation that the facts concealed do not exist. This will be more fully explained in treating of fraud. The practical test of fraud, as opposed to mere misrepresentation, is that fraud gives rise to an action ex delicto, while innocent misrepresentation does not. Fraud, besides being a vitiating element in contract, is a tort or wrong apart from contract, and may be treated as such by bringing an action of deceit. Misrepresentation, in exceptional cases, may invalidate a contract, but will not support an action of deceit.
53 Livingston v. Maryland Ins. Co., 7 Cranch, 506, 541, 3 L. Ed. 421. See "Insurance," Dec. Dig. (Key-No.) §§ 253-256; Cent. Dig. §§ 538-549.
54 Dowdall v. Canndy, 32 I11. App. 207; Bryant v. Ocean Ins. Co., 22 Pick. (Mass.) 200; Rice v. Insurance Co., 4 Pick. (Mass.) 439; Allegre's Adm'rs v. Insurance Co., 2 Gill & J. (Md.) 136, 20 Am. Dec. 424; Fosdick v. Insurance Co., 3 Day (Conn.) 108; Dennison v. Insurance Co., 20 Me. 125, 37 Am. Dec. 42; Connecticut Mut. Life Ins. Co. v. Luchs, 108 U. S. 498, 2 Sup. Ct 949, 27 L. Ed. 800. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430.
55 Anderson v. Insurance Co., L. R. 7 C. P. 65. See "Insurance," Dec. Dig. (Key-No.) § 272; Cent. Dig. §§ 572-582.
56 A statement by an auctioneer that land which he offered for sale was "very fertile and improvable," whereas, in fact, it was in part abandoned as useless, was held to be "a mere flourishing description by an auctioneer," and not such a representation as would avoid the sale. Dimmock v. Hallett, L. R. 2 Ch. 21, 27. But on the sale of an hotel it was held that the contract was avoided by a false statement that the present lessee was "a most desirable tenant." Smith v. Property Co., 28 Ch. Div. 7. And see Tuck v. Downing, 76 I11. 71. See, also, post, p. 282. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 520-530.
57 Tuck v. Downing, 76 I11. 71; Fauntleroy v. Wilcox, 80 I11. 477; Slaughter v. Gerson, 13 Wall. 379, 20 L. Ed. 627; post, p. 2S9. See "Contracts," Dec. Dig. (Key-No.) § 94; Cent. Dig. §§ 420-430.
58 See post, pp. 282, 289.