12 The distinction was brought out in Levy tr. Cooke, 143 Pa. St. 607, 614, where Sterett, C. J., said: "If the owner intended to transfer the property in the goods, as well hs their possession, the transaction is a sale, and the property passes, bow-ever fraudulent the device may have been; but if he intended to part with nothing more than the bare possession, there is no sale and no property passes. In the former case the contract is not void ab initio, but voidable at the election of the vendor. Such voidable contracts may be affirmed and enforced, or they may be rescinded by the vendor at his election; but in the meantime, and until he does elect, if his vendee transfers the goods, in whole or in part, to an innocent third person for a valuable consideration, the right of the original vendor will be subordinate to that of such innocent third person." This language was quoted with approval in Canadian Bank v. Baum, 187 Pa. St. 48, 52, 40 Atl. 975. See also Baehr tr. Clark, 83 Iowa, 313, 49 N. W. 840, 13 L. R. A. 717; National Bank of Commerce v. Chicago, B. & N. Ry. Co., 44 Minn. 224, 46 N. W. 342, 560, 9 L. R. A. 263, 20 Am. St. Rep. 566; Heilbronn v. McAleenan, 1
N. Y. S. 876; Rohrbough v. Leopold, 68 Tex. 254, 4 8. W. 460; McDonald v. Humphries (Tex. Civ. App.), 146 5. W. 712.
13 Smith p. Chadwick, 20 Ch. D. 27; McGar v. Williams, 26 Ala. 409, 62 Am. Dec. 739; Colton tr. Stanford, 82 Gal. 351,23 Pac. 16,16 Am. St. Rep. 137; Sprague v. Taylor, 58 Conn. 542,
20 Atl. 612; Williams tr. McFaddeii, 23 Fla. 143,1 So. 618,11 Am. St. Rep. 345; Ruff o. Jarrett, 94 111. 475; Fuchs & Lang Mfg. Co. v. Kittredge, 242 I11. 88, 89 N. E. 723; Clem v. Newcastle, etc., R. R. Co., 9 Ind. 488, 68 Am. Dec. 653; Wright v. Shelby R. R. Co., 16 B. Mon. 4, 63 Am. Dec. 522; Long tr. Woodman, 58 Me. 49; Braley v. Powers, 92 Me. 203, 42 Atl. 362; Cook tr. Gill, 83 Md. 177,34 Atl. 248; Hedden v. Griffin, 136 Mass. 229, 49 Am. Rep. 25; Dawe v. Morris, 149 Mass. 188,
21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404; Hall tr. Johnson, 41 Mich. 286, 2 N. W. 55; Kley v. Healy, 127 N. Y. 555, 28 N. E. 593; Handy tr. Waldron, 19 R. I. 618, 35 Atl. 884; Stone v. Robie,'66 Vt. 245, 29 Atl. 257. It was held in Penn Ins. Co. v. Crane, 134 Mass. 56, that it was a question of law for the court whether a misrepresentation was material. But the contrary decisions of Sharp v. Ponce,
If, however, a party to a bargain has made misrepresentations for the purpose of inducing action by the other, and the other party has acted, relying upon the misrepresentations, it seems that the former should not be allowed to deny that misrepresentations which have effectively served a fraudulent purpose were material.14 This in effect is saying that any misrepresentations which were intended to bring about a particular re- suit and which do bring about that result are sufficiently material. It is probable that in cases where the question of materiality has been regarded as vital the question whether the misrepresentation was an essential inducement to enter into the transaction has also generally been in the mind of the court.