1 M1Diarmid v. M'Diarmid, 3 Bligh (n. s.), 374. See also Farnam v. Brooks, 9 Pick. 212.
§ 628. But mere inadequacy of consideration will not alone be sufficient to avoid a contract, unless it be of so gross a nature, or under such circumstances, as to indicate improper advantage taken, and undue influence exerted over the mind of a person, and then relief will be granted in equity, not on the ground of inadequacy of consideration, but on the ground of fraud, as evidenced thereby.3 Or, as has been elsewhere stated, mere inadequacy of price is not sufficient ground for avoiding a sale, unless it is so gross as to afford presumptive evidence of actual fraud, or is in fact coupled with fraud, surprise, ignorance, mistake, delusion, or imbecility.1
1 Blachford v. Christian, 1 Knapp, 77; Malin v. Malin, 2 Johns. Ch. 238; Willis v. Jernegan, 2 Atk. 251; 1 Story, Eq. Jur. § 236; Gartside v. Isher-wood, 1 Bro. C. C. 559, 560, 561.
2 As to impositions upon foreigners, unable to read the English language, or other persons unable to read, in procuring their signatures to contracts, see Walker v. Ebert, 29 Wis. 194 (1871); Taylor v. Atchinson, 54 111. 156; Douglas v. Matting, 29 Iowa, 498; Whitney v. Snyder, 2 Lans. 477. Walker v. Ebert was a suit upon a note by a bond Jide indorsee for value against the maker; and the defendant was allowed to show that he could not read English, and had been deceived as to the character of the instrument. See also Gibbs v. Linabury, 22 Mich. 429 (1871).
3 Davidson v. Little, 22 Penn. St. 245. In this case the court say: "Such gross inadequacy as there was in this case is very well calculated to fix upon the transaction a serious suspicion of its fairness. It is contrary to all our usual experience that a man should part with his property at five per cent, of its value, unless he was excessively weak or ignorant, or under the influence of some deception. But if the vendor was thoroughly acquainted with every fact which it was necessary fo. him to know; if he was twenty-one years of age, and of sound mind; if there were no circumstances which gave the vendee an improper control over him, amounting to mental imprisonment; if, in short, the vendee behaved honestly, and the vendor was able to act like a free man, with his eyes open, then the one had a right to sell, and the other to buy, on any terms they saw proper to agree upon.
§ 629. By the Roman law a distinction was made between cases of positive fraud or dolus malus, and cases where one had acquired an advantage over the other by sharpness and craftiness; solertia or dolus bonus. As to the latter, the maxim was: In pretio emptionis et venditionis naturaliter licet contra-hentibus se circumvenire.
§ 630. So, also, by the Roman and Scottish law, the contract was only liable to reduction on account of fraud, where fraud was employed to induce a party to make a contract (ubi dolus dedit causam contractui) which he would not otherwise have made. Where the fraud is merely incidental to the contract, that is, when a party intending previously, and of his own accord, to enter into a contract, is merely deceived in modi contrahendi, the contract is not thereby vitiated, but the party defrauded has a claim for damages to the extent of his injury. This distinction does not, however, obtain in the common law, and is not admitted in equity.2
1 Parmelee v. Cameron, 41 N. Y. 392 (1869).
2 In regard to the latter class, Pothier says: "Dans le for interieur, on doit regarder comme contraire a cette bonne foi, tout ce qui s'ecarte tant soit peu de la sincerite la plus exacte et la plus scrupuleuse: la seule dissimulation sur ce qui concerne la chose qui fait l'objet du marche, et que la partie avec qui je contracte auroit intent de sc.avoir, est contraire a cette bonne foi; car puisqu'il nous est commande d'aimer notre prochain autant que nousmemes, il ne peut nous etre permis de lui rien cacher de ce que nous n'aurions pas voulu qu'on nous cachat, si nous eussions ete a sa place. Dans le for exterieur, une partie ne seroit pas ecoutee a se plaindre des ces legeres atteintes que celui avec qui il a contracte auroit donnees a la bonne foi; autrement il y auroit un trop grand nombre de conventions qui seroient dans le cas de la recision, ce qui donneroit lieu a trop de proces, et causeroit un derangement dans le commerce. II n'y a que ce qui blesse ouvertement la bonne foi qui soit, dans ce for, regarde comme un vrai dol, suffisant pour donner lieu a la recision du contrat, tel que toutes les mauvaises manoeuvres et tous les mauvais artifices qu'une partie auroit employes pour engager Tautre a contracter; et ces mauvaises manoeuvres doivent útre pleinement justifiees." This doctrine seems also to obtain in the Scottish law. Pothier des Oblig. pt. 1, art. 3, n. 30, p. 19. It is perhaps unnecessary to' say, that by the M for interieur," Pothier means the conscience, which is governed by principles of morality only; while by the "for exterieur," he means the courts of law, which are governed solely by the practical law.
§ 631. Fraud is of various kinds; but by far the largest number of cases consist either in misrepresentation or concealment. We shall therefore divide the subject into these two classes: 1st. Misrepresentation; 2d. Concealment.