This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The rule that nondisclosure is not fraud is not a technical one. If the concealment is coupled with a false representation, fraud exists, even if the concealment was really the operative factor in the deceit.1 Thus fraud exifets where a debtor by misstatement had given the community in which he lived to understand that he was execution-proof and thus knowingly concealing the fact that he had property subject to execution sufficient to pay the whole claim of his creditor, settled for less, making no false representation to the creditor.2 Thus giving a statement of liabilities, but omitting a note, as where there was a deliberate omission from a statement of the liabilities of a firm of a note given by it to a bank, which represented the interest of the president of the bank in the firm and which he was to pay,3 amounts to fraud. But where the president of a cor-poration omitted from a statement of its liabilities a claim then in litigation, which on reaspnable grounds he believed could not be enforced against the company, he was held not liable for fraud to the purchasers of bonds,4 and omission from the statement of a firm of the liabilities of the individual members is not fraud.5 A's stating that stock was worthless, but that he wished it as a memorial of his father, concealing an offer made to him for it;6 a statement that title was good, concealing the fact that a prior grantor was insane, when he conveyed it;7 stating that A, a prominent business man, has subscribed for stock, concealing the fact that he gets.it for nothing;8 entering a fictitious deposit on A's bank-book and concealing from B on inquiry that such deposit was never made;9 concealing the value of land, and informing vendor who knows nothing of the facts that the better part had been disposed of;10 or concealing knowledge of valuable deposits of phosphates and stating that the land was valuable only for pine;11 or concealing the fact that improper relations exist between a woman and her physician and making false statements as to the condition of her health by which her husband is induced to consent to her living apart from him and settle property upon her for her support,12 are cases of fraud. Acquiescence in misstatements by others, together with concealment of the truth, may be fraud.13 The fact that a physician who is employed by a railroad to secure a settlement of a claim of A, a passenger, for personal injuries, does not disclose to A the fact that he is employed by the railroad company, and advises A that his injuries are not as serious as they prove to be subsequently, is said not to amount to fraud, the extent of the injuries being a matter upon which competent physicians might differ.14
27Home Ins. Co. v. Holway, 55 Ia. 571, 39 Am. Rep. 179, 8 N. W. 457; Southwestern Co. v. Wynnegar, 111 Miss. 412, 71 So. 737; Hebert v. Lee, 118 Tenn. 133, 121 Am. St. Rep. 989, 101 S. W. 175.
28Aetna Life Ins. Co. v. Mabbett, 18 Wis. 667.
29Watertown Savings Bank v. Mat-toon, 78 Conn. 388, 62 Atl. 622; Aetna Life Ins. Co. v. Mabbett, 18 Wis. 667.
30 Smith v. Josselyn, 40 O. S. 409.
31 Wait v. Homestead Building Association, 76 W. Va. 431, 85 S. E. 637.
32 Sherman v. Smith, - Ia. - , 169 N. W. 216.
33 Osborne v. Chicago Bonding & Surety Co., 96 Wash. 133, 164 Pac. 742.
1 Nairn v. Ewalt, 51 Kan. 355, 32 Pac. 1110; Hossier Realty Co. v. Caddo Cotton Oil Co,, 136 La. 328, 67 So. 20; Crompton v. Beedle, 83 Vt. 287, 75 Atl. 331.
2 Howard v. McMillen, 101 Ia. 453, 70 N. W. 623.
3 John V. Parwell Co. v. Boyce, 17 Mont. 83, 42 Pac. 98.
4Kountze v. Kennedy, 147 N. Y. 124, 49 Am. St. Hep. 651, 29 L. R. A. 360, 41 N. E. 414.
5Vermont Marble Co. v. Smith, 13 Ind. App. 457, 41 N. E. 973.
6 Edelman v. Latshaw, 180 Pa. St. 419, 36 Atl. 926.
7 Burns v. Dockray, 156 Mass. 135, 30 N. E. 551.
8Coles v. Kennedy, 81 la. 360, 25 Am. St. Rep. 503, 46 N. W. 1088.
9James v. Crostwait, 97 Ga. 673, 36 L. R. A. 631, 25 S. E. 754.
10Dean v. Brooke, 88 Wis. 667, 60 N. W. 255.
11 Stackpole v. Hancock, 40 Fla. 362, 45 L. R. A. 814, 24 So. 914 [citing Dolman v. Nokes, 22 Beav. 402; Laidlaw v. Organ, 15 U. S. (2 Wheat.) 178, 4 L. ed. 214; Kohl v. Lindley, 39 111. 195, 89 Am. Dec. 294; Bowman v. Bates, 5 Ky. (2 Bibb.) 47, 4 Am. Dec. 677; Swimm v. Bush, 23 Mich. 99; Morgan v. Dinges, 23 Neb. 271, 8 Am. St. Rep. 121, 36 N. W. 544; Smith v. Countryman, 30 N. Y. 655; Smith v. Beatty, 24 N. Car. (2 Ired. Eq.) 456, 40 Am. Dec. 435; Caples v. Steel. 7 Or. 492; Harris v. Tyson, 24 Pa. St. 347, 64 Am. Dec. 6611.
12Rumbaugh v. Rumbaugh, 39 Okla. 445, 135 Ac. 937.
13Firestone v. Werner, I Ind. App. 293, 27 N. E. 623; OLeary v. Tilling-hast, 22 R. I. 161, 46 Atl. 754.