A common form of fraud upon the seller is a misrepresentation of the buyer's solvency or ability to pay for the goods, by which the seller is induced to give credit to the buyer. Such representations if going beyond an expression of opinion are obviously fraudulent.95 There can be no doubt that any mis
Chickering & Co. the subscribers to Dun & Co.'s reports would naturally and would have a right to suppose he was doing business not only for himself but for Mr. Monnette and Mr. Hull, and that credit extended to the firm would be in the belief that it was extended to a responsible firm. To do business under such circumstances in the name of a responsible firm, for his own use, when he was hopelessly insolvent, was a fraud upon those with whom he did business, and to allow such a transaction to stand would not be very creditable to the courts. . . . This was not a case of simply remaining silent when one was under no obligation to speak. The defendant knew, as already stated, that the firm of Frank Chickering & Co., listed at Grand Rapids, was represented by a great mercantile agency as responsible and entitled to credit, and that this representation would naturally be relied upon when an order was sent in the name of that firm. Under such circumstances, it was his duty to speak when he came to deal with a person who was a stranger to him and who, by the usual and known methods among business men, would be likely to consult the representation as contained in the mercantile reports." It may be added that the use of the name Frank Chickering & Co. was a misrepresentation. It is submitted that it will always be a misrepresentation for a buyer to use language in a sense, which though literally accurate, he knows will be misinterpreted by the seller.
93 Statements made a year before the sale were held not necessarily too remote in Lowdon v. Fisk (Tex. Civ. App.), 27 S. W. 180. So in Cox Shoe Co. v. Adams, 105 Iowa, 402, 415, 75 N. W. 316, where reports were made "nearly a year" before the purchase. The question was held to be one of fact to the jury whether a statement made two months before should have been acted upon by the seller without inquiry. Richardson Dry Goods Co. v. Goodkind, 22 Mont. 462, 56 Pac. 1079. See also Treadwell v. State, 99 Ga. 779, 27 S. E. 785. In Sharp-less v. Gummey, 166 Pa. St. 199, 30 Atl. 1127, two and a half years was held too great a lapse of time for the seller to be justified in relying on a statement.
94 Bradley v. Seaboard Nat. Bank, 167 N. Y. 427, 60 N. E. 771. See also Brown v. Lobdell, 51 111. App. 574.
95 In re Marengo Mercantile Co., statement of fact of this kind made with knowledge of its falsity and operating as an inducement to the sale is ground either for avoiding the sale or for an action of deceit. Statements are sometimes made, however, which are merely matters of opinion, not statements of fact, and, therefore, not within the rule just stated.96 This is especially likely to be true of misrepresentations made, not by the buyer himself, but by third persons,
The law is well settled that where the buyer at the time of the purchase is insolvent and intends not to pay for the goods, it is a fraud which will render the purchaser's title voidable.97
199 Fed. 474; Fay v. Hill, 249 Fed. 415, 161 C. C. A. 389; McKernie v. Weine-man, 116 Ala. 194, 22 So. 608; Bugg v. Wertheiraer-Schwarti Shoe Co., 64 Ark. 12,40 S. W. 134; Bell v. Kaufman, 9 Colo. App. 259, 47 Pac. 1035; Judd v. Weber, 55 Conn. 267, 11 Atl. 40; Dinkier v. Potts, 90 Ga. 103, 15 S. E. 690; Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; Clark v. Monroe Co., 127 Mich. 300, 86 N. W. 816; McKinney v. Bank, 36 Neb. 629, 54 N. W. 963; Boyd v. Shiffer, 156 Fa. St. 100, 27 Atl. 60; Cincinnati Cooperage Co. v. Gaul, 170 Pa. St. 645, 32 Atl. 1093; Fitchard v. Doheny, 93 App. Div. 9, 86 N. Y. S. 964; Richardson v. Vick, 125 Tenn. 532, 145 S. W. 174; Wertheimer-Swarts Shoe Co. v. Faris (Tenn. Ch. App.), 468.W.336. Nor is it the less fraudulent because the buyer intended to pay. Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 Atl. 390, 10 L. R. A, (N. S.) 679.
96 See supra, Sec.1491.
97 Ferguson v. Carrington, 9 B. & C. 50; Load p. Green, 15 M. & W. 216; Clough v. London, etc., Ry. Co., L. R. 7 Ex. 26; Ex parte Whittaker, 10 Ch. 446, 449; Donaldson v. Farwell, 93 U. S. 631, 23 L. Ed. 993; Parker v. Byrnes, 1 Low. 539; In re Spann, 183 Fed. 819; In re Marks, 218 Fed.
453, 134 C. C. A. 253; In re Hunter-Rand Co., 241 Fed. 175; In re Collins, 242 Fed. 975; Jones v. H. M. Hobbie Grocery Co., 246 Fed. 431,158 C. C. A. 495; Loeb v. Flash, 65 Ala. 526; Spira v. Hornthall, 77 Ala. 137; Robinson v. Levi, 81 Ala. 134, 1 So. 554; Taylor v. Mississippi Mills, 47 Ark. 247, 1 S. W. 283; Bugg v. Wertheimer-Schwarts Shoe Co., 64 Ark. 12, 40 S. W. 134; Thompson v. Rose, 16 Conn. 71, 41 Am. Dec. 121; Morrison v. Sinister, 1 Mackey (D. C), 190; Johnson v. O'Donnell, 75 Ga. 453; Seisel v. Wells, 99 Ga. 159, 25 S. E. 266; Farwell v. Hanchett, 120 HI. 573, 11 N. E. 875; Wabash, St. L. & P. R. Co. v. Shryock, 9 HI. App. 323; Brower v. Goodyer, 88 Ind. 572; Waterbury v. Miller, 13 Ind. App. 197, 41 N. E. 383; Oswego Starch Factory v, Lendrum, 57 Iowa, 573, 10 N. W. 900, 42 Am. Rep. 53; Cox Shoe Co. v. Adams, 105 Iowa, 402, 75 N. W. 316; J. J. Smith Lumber Co. v. Scott County Garbage etc. Co., 149 la. 272, 128 N. W. 389, 30 L. R. A. (N. S.) 1184; Reager v. Kendall, 19 Ky. L. Rep. 27, 39 S. W. 257; Kirk-Patrick's Exec. v. E. Rehkoph Saddlery Co., 144 Ky. 129, 137 S. W. 862; Bur-rill v. Stevens, 73 Me. 395,40 Am. Rep. 366; Atlas Shoe Co. v. Bechard, 102 Me. 197, 66 Atl. 390, 10 L. R. A. (N.
In Pennsylvania, however, it is essential that some positive representation be made or some trick, artifice, or conduct which involves a false representation be added. Secret intention not to pay is there insufficient." It may be urged that a mere intention does not amount to a representation of an existing fact by the buyer and that if a court gives relief to the buyer the only ground can be that circumstances exist though the seller has no knowledge of them which render the transaction unfair. The answer to this, however, is that the purchase of goods implies a promise to pay for them even if there is no express promise; and a promise to pay, whether express or implied, involves a representation that the buyer intends to keep his promise. Accordingly, not only is the bargain voidable, but it has been held the seller may maintain an action of deceit.99 This,