§ 1080. Fraud vitiates every contract, and may consist either in misrepresentation or in concealment.1

§ 1081. Every misrepresentation, whether fraudulent or not, which actually deceives the vendee, vitiates a contract of sale, if it be with regard to any thing constituting a material inducement thereto.2 A mere false expression of opinion or judgment, with regard to the nature and quality of the article sold, or a false assertion of its value, will not constitute such a misrepresentation as to avoid a contract,3 unless, on the one hand, special confidence be known to the vendor to be placed in his opinion, and, on the other hand, the buyer be without other means of information, or be induced by such affirmation to forbear making inquiry.4 The cases where false assertions

1 See, upon this subject, ante, § 632 et seg.

2 See ante, § 632 to § 643. The burden of proof being on the party alleging the fraud. Briggs v. Humphrey, 5 Allen, 314 (1862). An executory contract for the sale of personal property, entered into upon false and fraudulent representations, made by the purchaser to induce the vendor to make the same, and upon the truth of which representations the latter relied, cannot be enforced. Whatever facts would enable a party to avoid a contract, are equally available to enable him to defeat one sought to be enforced against him. Smith v. Countryman, 30 N. Y. 635 (1861).

3 Trower v. Newcome, 3 Mer. 704; 2 Kent, Comm. 484; Story, Eq. Jur. § 190, 192, 195; Pearson v. Morgan, 2 Bro. C. C. 389; Joice v. Taylor, 6 Gill & Johns. 54; Ferguson v. Carrington, 9 B. & C. 59; Laid-law v. Organ, 2 Wheat. 178; Jaines v. Morgan, 1 Lev. 111; Thornborow v. Whitacre, 2 Ld. Raym. 1164. An untrue representation or affirmation by the vendor of a piano-forte, that "it is well made, and will stand up to concert pitch," may authorize the purchaser to rescind the contract. Stroud v. Pierce, 6 Allen, 413 (1863).

4 Hill v. Gray, 1 Stark. 434. See Story, Eq. Jur. § 191, etc, for a full discussion of the whole of this subject. Vernon v. Keys, 12 East, of opinion are considered sufficient to constitute a fraud are, however, peculiar in their circumstances, and it behooves the buyer to be specially careful in trusting to them. Where matters of fact are misrepresented by the seller, he is guilty either of fraud or mistake, and the buyer has his remedy against him in either case.1

§ 1082. So, also, every concealment of defects which is made by artifice, and for the purpose of deceiving the buyer, vitiates the sale. But the vendor is under no obligation to give all of the information that he himself possesses in regard to the article sold. The concealment which will vitiate a contract, must be in respect of some material fact, which one party, under the circumstances, is bound in conscience and legal duty to disclose to the other. For the general rule of the common law is caveat emptor; and unless, as we have seen, there be a warranty or a fraudulent misrepresentation or concealment, the vendee buys at his own risk.2 But if there be any trust or confidence reposed in the seller by the buyer, which the concealment would violate, the sale is fraudulent.

§ 1083. In regard to extrinsic circumstances, forming no part of the sale, but connected therewith, and forming an inducement thereto, or enhancing the value of the thing sold, there is no obligation, on the part of the seller or buyer, to disclose the knowledge of them. Thus, a vendee is not bound to disclose the fact that the land which he contracts to buy, contains a mine, although the vendor be ignorant of the fact; and although it would greatly enhance the value of the land.3 So, also, he is not bound to disclose the rise of the market, or any other knowledge which he may have from private sources, and unknown to the seller. But if a vendor should sell an estate, and conceal the fact that there were incumbrances upon it, of which the buyer was ignorant, or that he had no title, or should sell a house which he knew to be burned down, the sale would be fraudulent, and would be set aside in equity, upon the ground that the very purchase implied a trust or confidence on the part of the vendee, that no such defect existed; and silence would, on such a point, be equivalent to an assertion that he had a good title, or that the house existed, or that there were no incumbrances.1

637; 2 Kent, Comm. lect. 39, p. 482, 483; Turner v. Harvey, Jacob, 178; Bramley v. Alt, 3 Ves. 624; Bexwell v. Christie, Cowp. 395. See ante, § 643 to § 649; Abbott v. Marshall, 48 Me. 44 (1860).

1 Ante, § 632.

2 Laidlaw v. Organ, 2 Wheat. 178. See Bench v. Sheldon, 14 Barb. 66; Pearce v. Blackwell, 12 Ire. 49; Ferebee v. Gordon, 13 Ire. 350; Wood v. Ashe, 3 Strob. 64; Kintzing v. McElrath, 5 Barr, 467.

3 Fox v. Mackreth, 2 Bro. Ch. 420; Turner v. Harvey, Jacob, 178; Story, Eq. Jur. § 205, 207.

§ 1084. So fraud in the vendee may render a sale void as against the vendor. Thus, purchasing goods with an intention not to pay for them is a fraud, which will render the sale void, and entitle the vendor to reclaim the goods from the vendee or any subsequent purchaser, with notice or without consideration, although there were no fraudulent misrepresentation or false pretences.2 So a statement by the purchaser of standing wood, that he thought the lot contained about eight acres, when he had caused it to be measured, and knew that it contained sixteen acres, is such a fraudulent misrepresentation as will authorize the seller to rescind the sale.3

1 Story, Eq. Jur. § 208, 209; Arnot v. Biscoe, 1 Ves. 95, 96; Pilling v. Armitage, 12 Ves. 78; Pothier, de Vente, n. 240.

2 Dow v. Sanborn, 3 Allen, 181 (1861). And see Wiggin v. Day, 9 Gray, 97 (1857), that a creditor of such a vendee cannot hold them.

3 Prescott v. Wright, 4 Gray, 461 (1855).