(e) Hatch v. Barley, 12 Cash. 27.

(ee) Lyman v. Cessford, 15 Iowa, 229.

(f) It is frequently said, that courts of equity can act more upon presumptive evidence of fraud than courts of law, but the consideration of that subject in detail is foreign to the object of the present work. See Warner v. Daniels, 1 Woodb. & M. 90; 1 Story, Eq. Jur. § 190; Rosevelt v. Fulton, 2 Cowen, 129; Neville v. Wilkinson, 1 Bro. Ch. 543.

It is certain that misrepresentation may not imply fraud in fact, because it may spring wholly from mistake; and nothing would be gained by calling a misrepresentation, which is innocent in fact, fraudulent in law. It is enough to say, that material misrepresentations which go to the substance of a contract, avoid that contract, whether they are caused by mistake, and occur wholly without fault, or are designed and fraudulent. (h)

This principle is carried so far, that if one acquires property by a purchase founded upon his misrepresentations, especially if they be not only false but fraudulent, he acquires no right in the property, but the seller may retake it from the person so acquiring it, in the same manner as if it had been stolen; that is, with all reasonable, necessary force. (i)

(g) And the case of Adamson v. Jams, 4 Bing. 66, well illustrates this principle. There the defendant gave the plaintiff, an auctioneer, an order and authority to sell certain goods, representing himself to be the true owner. The plaintiff sold them, and paid over the proceeds to the defendant. The goods proved not to belong to the defendant, and the true owner recovered their value of the auctioneer. The latter was allowed to recover of the defendant for having falsely represented himself to be the true owner, although there was no evidence of any fraud, or malice, or knowledge that he was not the true owner. And this was placed on the ground of an implied contract on the part of the defendant to indemnify a person for doing what he had employed him to do. And false statements, by a vendor of land, of the quantity, quality, or boundaries of the premises sold, if material, and relied upon by the other party, will avoid the sale, whether the vendor knew them to be false or not. Warner v. Daniels, 1 Woodb. & M. 90; Ainslie v. Medlycott, 9 Ves. 13; Shackelford v. Handley, 1 A. K. Marsh. 500; Munroe v. Pritchett, 16 Ala. 785.

(h) This principle is asserted or implied in many of the cases already cited in this chapter; as in Buford v. Caldwell, 3 Mo. 477; Parham v. Randolph, 4 How. (Miss.) 435; Lockridge v. Foster, 4 Scam. 569; Snyder v. Findley, Coxe, 48; Warner v. Daniels, I Woodb. & M. 90. We add to these, Smith v. Babcock, 2 Woodb. & M. 246; Mason v. Crosby, 1 Woodb. & M. 342; Doggett v. Emerson, 3 Story, 700; Thomas v. McCann, 4 B. Mon. 601.

A recent case in California has drawn the distinction, that false representations cannot avoid a contract, unless they are made in reference to matters of fact, and not of law. (u)

As fraud from its very nature seeks concealment, and sometimes, where it certainly exists, is not susceptible of direct proof, a wide consideration of all the circumstances of the case is permitted, and evidence received upon which this consideration may be founded. (ij) And it is sometimes said that courts of equity will admit evidence of fraud, and draw from it an inference of fraud, which courts of law would not do. (ik)

Akin to the defence of fraud, and sometimes connected with it, is the defence of mistake. Generally, the mistake of one party, the other party being ignorant thereof, does not vitiate a contract. (il) If the other party knew and did not correct it, this may be evidence of fraud. (im) Both parties may so mistake that the written agreement does not express their intention. If obvious, the court will rectify it. (in) Otherwise, as evidence cannot be admitted to vary a written contract, by the strict rule of law it would stand; but equity would either reform it or set it aside. (io)

(i) Hodgeden v. Hubbard, 18 Vt. 504. See ante, book 3, ch. 4, § 1.

(ii) People v. San Francisco, 27 Cal. 655

(ij) Lincoln v. Claflin, 7 Wallace, 132; Perkins v. Pront, 47 N. H. 387; Hicks v. Stone, 13 Minn. 434; Blackman v. Wheaton, 13 Minn. 326; McNorton v. Akers, 24 Iowa, 369.

(ik) King v. Moon, 42 Mo. 551. See ante, p.* 783.

(il) Scott v. Littledale, 27 L. J. Q. B. 201.

(im) Garrard v. Fraukol, 31 L. J. C. 604.

(in) Wilson v. Wilson, 23 L. J. C. 697.

(io) See Murray v. Parker, 19 Bear. 305, and Bentley v. Mackay, 3 L. J. C. 697.