1 Hill v. Gray, 1 Stark. 434. See also Turner v. Harvey, Jacob, 169; Matthews v. Bliss, 22 Pick. 53.
2 But most authorities hold that there must be an intention not to pay, for which relief might be obtained either in law or in equity.1 A fortiori, where a party purchases goods with an intent not to pay for them, it is a fraud which vitiates the contract, and in some of the States in this country would subject him to a criminal prosecution.2 So, also, wherever it is the usage of trade to state any objections to the subject-matter, or any defects which may exist in it, silence in respect to them would operate as a fraud. Thus, where, in an action on the case for deceit in the sale of some pimento, the declaration alleged that it was sold at auction, as not sea-damaged, whereas it was in reality sea-damaged, and at the trial it was proved that, in the sale of sea-damaged pimento at auction, it was the custom to state that it was sea-damaged, and that if nothing were said in respect to its condition, it was understood to be sound, and that the seller was silent in this case, it was held, that the action was maintainable, for silence under such circumstances amounted to a fraud.3 So, also, if one party should state certain facts in relation to the subject-matter of a contract, in presence of the other, and the other should be silent when he ought to answer, his silence would be an assent thereto, and he would be bound in like manner as if he had actually made the statement himself.4
§ 648. If, however, this special trust and confidence be not merely a special implication from the circumstances of the case, but grow out of the relationship of the parties to each and not merely a consciousness of an inability to pay. See Cross v. Peters, 1 Greenl. 378; Powell v. Bradlee, 9 Gill & J. 220; Redington v. Roberts, 25 Vt. 686; Smith v. Smith, 21 Penn. St. 367; Biggs v. Barry, 2 Curtis, C. C. 259; Mitchell v. Worden, 20 Barb. 253; Buckley v. Artcher, 21 Barb. 585; Bidault v. Wales, 19 Mo. 36.
1 Earl of Bristol v. Wilsmore, 2 Dowl. & Ryl. 755; s. c. 1 B. & C. 519; Ash v. Putnam, 1 Hill, 302; Load v. Green, 15 M. & W. 216; Mackinley v. M'Gregor, 3 Whart. 370; Thompson v. Rose, 16 Conn. 71; Conyers v. Ennis, 2 Mason, 239; Irving v. Motly, 7 Bing. 543; Lloyd v. Brewster, 4 Paige, 537; Ferguson v. Carrington, 9 B. & C. 59; Hogan v. Shee, 2 Esp. 523; De Symons v. Minchwich, 1 Esp. 430; Read v. Hutchinson, 3 Camp. 352.
2 Bidault v. Wales, 20 Mo. 546. .
3 Jones v. Bowden, 4 Taunt. 847. See also Swancott v. Westgarth, 4 East, 75; Gordon v. Swan, 2 Camp. 429, n. 4 See ante, § 496.
1 1 Story, Eq. Jur. § 307, et seq., and cases cited; Goddard v. Carlisle, 9 Price, 169; Gallatian v. Cunningham, 8 Cow. 361; Gartside v. Isherwood, 1 Bro. C. C. App. 560.
2 Welles v. Middleton, 1 Cox, 112; 3 P. Wms. 131, and Cox's note (1); Wright v. Proud, 13 Ves. 136; Jones v. Thomas, 2 Younge & Coll. 498.
3 Cane v. Lord Allen, 2 Dow, 289; Hunter v. Atkins, 3 Myl. & Keen, 113; 1 Story, Eq. Jur. § 311; Dawson v. Massey, 1 Ball & B. 229.
4 Short v. Stevenson, 63 Penn. St. 95 (1869). And see Simons v. Vulcan Oil Co., 61 ib. 202 (1869).
5 Crowe v. Ballard, 3 Bro. C. C. 117; Purcell v. M'Namara, 14 Ves. 91; Green v. Winter, 1 Johns. Ch. 27; Parkist v. Alexander, 1 Johns. Ch. 394. 6 Farnam v. Brooks, 9 Pick. 213, 227.
§ 649. A distinction may, however, exist between executory and executed contracts, where material facts have been concealed. And a court of equity will sometimes refuse to set aside a contract which is wholly performed, although there may have been a concealment of facts, when, if the contract were executory, it would not decree a specific performance.1 So, also, if the case were without the reach of equity, being susceptible of an accurate adjustment of damages at law, a jury might well refuse to give more than merely nominal damages, in cases where a court of equity would refuse to decree a specific performance.