The use of the words "fraud" and "deceit" have probably-exercised an unfortunate influence in the development of the law on the subject. These words naturally import consciously wood v. Carlton, 162 Ala. 327, 333, 50 So. 254; Manning v. Carter, (Ala. 1017), 77 So. 744; Goodale v. Mid-daugh, 8 Colo. App. 223, 231, 46 Pac. 11; Board of Water Commissioners v. Robbing, 82 Conn. -623, 74 Atl. 938; Watson v. Jones, 41 Fla. 241, 254, 25 So. 678; Upchurch v. Micell, 50 Fla. 456, 40 So. 29; New v. Jackson (Ind. App.), 95 N. E. 328; Mowes v. Robbins (Ind. App.), 120 N. E. 51; Smith v. Packard, 152 Iowa, 1,130 N. W. 1076; Maffet v. Schaar, 89 Kan. 403,131 Pac. 589; Ward v. Trimble, 103 Ky. 153, 159, 44 S. W. 450 (cf. Taylor v. Mullins, 151 Ky. 597, 152 S. W. 774); Trimble v. Reid, 19 Ky. L. Rep. 604, 41 S. W. 319; Braley v. Powers, 92 Me. 203, 209, 42 Atl. 362; Atlas Shoe Co. v. Bechard, 102 Me. 197, 203, 66 Atl. 390, 10 L. R. A. (N. S.) 1045; Phelps v. Georges' Creek & C. R. Co., 60 Md. 536 (cf. Cahill v. Applegarth, 98 Md. 493, 56 Atl. 794; Boulden v. Stilwell, 100 Md. 543, 60 Atl. 609, 1 L. R. A. [N. S] 258); Fisher v. Mellen, 103 Mass. 503; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168, 9 Am. St. Rep. 727; Weeks v. Currier, 172 Mass. 53, 55, 51 N. E. 416; Arnold v. Teel, 182 Mass. 1, 4, 64 N. E. 413; Adams v. Collins, 196 Mass. 422, 82 N. E. 498; Huntress v. Blodgett, 206 Mass. 318, 324, 92 N. E. 427 (see also Kerr v. Shurtleff, 218 Mass. 167, 105 N. E. 871); Holcomb v. Noble, 69 Mich. 396, 37 N. W. 497; Aldrich v. Scribner, 154 Mich. 23, 117 N. W. 581, 18 L. R. A. (N. S.) 379; Littlejohn v. Sample, 173 Mich. 419, 139 N. W. 38; Hubbard v. Oliver, 173 Mich. 337, 139 N. W. 77; Bullitt v. Farrar, 42 Minn. 8, 43 N. W. 566, 6 L. R. A. 149; Riggs v. Thorpe, 67 Minn. 217, 69 N. W. 891;

Charles P. Kellogg Co. v. Holm, 82 Minn. 416, 85 N. W. 159; Freeman v. Harbaugh Co., 114 Minn. 283, 130 N. W. 1110; Wann v. Northwestern Trust Co., 120 Minn. 493, 139 N. W. 1061; Sims v. Eiland, 57 Miss. 83, 85; McNeer v. Norfleet, 113 Miss. 611, 74 So. 577 (cf. Vincent v. Corbett, 94 Miss. 46,47 So. 641,21 L. R. A. (N. 8.) 85; Snider v. McAtee, 165 Mo. App. 260,147 S. W. 136; Phillips v. Jones, 12 Neb. 213, 10 N. W. 708; Johnson v. Gulick, 46 Neb. 817,821,65 N. W. 883, 50 Am. St. Rep. 629; Gerner v. Mosher, 58 Neb. 135, 154, 78 N. W. 384, 46 L. R. A. 244; Tate v. Bates, 118 N. C. 287, 24 S. E. 482, 54 Am. St. Rep. 719; Houston v. Thornton, 122 N. C. 365, 373, 29 S. E. 827, 65 Am. St. Rep. 00; Whitehurst v. Life Ins. Co., 149 N. C. 273, 62 S. E. 1067; Howe v. Martin, 23 Okl. 561,102 Pac. 128; Joines v. Combs, 38 Okl. 380, 132 Pac. 1115; Madden v. Graham (Okl.), 174 Pac. 259; Bonelli v. Burton, 61 Oreg. 429, 123 Pac 37; Bower v. Fenn, 90 Pa. 359, 35 Am. Rep. 662; McCabe v. Desnoyen, 20 S. Dak. 581, 108 N. W. 341; Shea v. Mabry, 1 Lea (Tenn.), 319, 342; Seale v. Baker, 70 Tex. 283, 7 S. W. 742, 8 Am. St. Rep. 592; Giddings p. Baker, 80 Tex. 308,16 S. W. 33; Oneal v. Weisman, 39 Tex. Civ. App. 592, 88 S. W. 290; Barclay v. Deyerle, 53 Tex. Civ. App. 236,116 S. W. 123; Gibbens p. Bourland (Tex. Civ. App.), 145 S. W. 274; Godfrey p. Olson, 68 Wash. 59, 122 Pac. 1014; James v. Piggott, 70 W. Va. 435, 74 S. E. 667; Krause v. Bu-sacker, 105 Wis. 350, 81 N. W. 406; First Nat. Bank v. Hecht, 159 Wis. 113, 149 N. W. 703; Bechman v. Saber (Wis.), 169 N. W. 279. See also Calif. Civ. Code, Sec.1710 (2); Mont.

The real issue which should be discussed is thus constantly obscured by the terminology of the subject. The real issue is no less than this: When a defendant has induced another to act by representations false in fact though not dishonestly made, and damage has directly resulted from the action taken, who should bear the loss?

In considering which doctrine is the better, consideration should be given chiefly to two things. First: logical consistency with itself in all parts of the law governing misrepresentation. Secondly: the inherent justice of the rule proposed. That the law of misrepresentation as laid down in Deny v. Peek 41 is hopelessly inconsistent with the law governing misreprsentation when relied on as the basis of warranty or estoppel, can hardly be denied. Adherence to what may be regarded as established English doctrine in deceit, estoppel, and warranty is absolutely illogical, and with simplified pleading becomes nearly, if not quite, impossible. It is a just ground of reproach to the law if a harmonious doctrine cannot be developed.

Civ. Code, Sec. 5073 (2); N. Dak. Civ. Code, Sec.5388 (2); S. Dak. Civ. Code, Sec. 1283 (2); all of which provide that a deceit includes "the assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true." "What's in a name" IS well illustrated by Carpenter v. Sugden, 231 Mass. 1, 110 N. . 060. No court has gone further than that of Massachusetts in holding that statements of fact made by one who asserted knowledge which he did not have are fraudulent whether made with conscious dishonesty or not. But in the case just cited the plaintiff who had bought from the defendant the good will and contents of a garage under a written contract relied on an oral "warranty" that the articles purchased cost the defendant the amount set forth in the inventory. The court held the evidence properly rejected and said "There was no evidence of fraud." Surely whatever else a warranty of an existing fact may be it is at least an assertion of the truth of the fact, and surely also the seller of goods may be supposed to know what they cost him and when he warrants the cost, to assert that he has that knowledge. 41 14 App. Cas. 337.

The inherent justice of the severer rule of liability which in some cases at least holds a speaker liable for damages for false representations, though his intentions were innocent and his statements honestly intended, is equally clear. However honest his state of mind, he has induced another to act, and damage has been thereby caused. If it be added that the plaintiff had good reason to attribute to the defendant accurate knowledge of what he was talking about, and the statement related to a matter of business in regard to which action was to be expected, every moral reason exists for holding the defendant liable.