(0) Taylor v. Ashton, 11 M. & W. 400; Barley v. Walford, 9 Q. B. (58 E. C. L. R.) 197; Barnes v. Pennell, 2 H. L. C. 497; Gerhard v. Bates, 22 L. J. (Q. B.) 367; 2 E. & B. (75 E. C. L. E.) 476; S. C.
(p) Hill v. Gray, 1 Stark (2 E. C. L. R.) 434. See Keates v.Lord Cadogan, 20 L. J. (C. P.) 76; 10 C. B. (70 E. C. L. R.) 591.
1 A contract to be obligatory must be justly and fairly made. The undue concealment which amounts to a fraud is the non-disclosure of those facts and circumstances which one party is under some legal or equitable obligation to communicate to the other, and which the latter has a right to know. The concealment of facts must be by a party who is under some special obligation, by confidence reposed or otherwise, to communicate them truly. Mitchell v. McDougall, 62 111. 498.-s.
It has sometimes been supposed that there was such a thing as legal fraud, which would invalidate a contract though there was no moral fraud in the transaction. In the recent case of Joliffe v. Baker (t), this doctrine has been examined at some length, and the conclusion there arrived at is that such a distinction is not maintainable. And * Watkin Williams, J., in delivering the judgment of the Court in that case, adopts, with regard to the expression of legal fraud, the words of Bramwell, L. J., in Weir v. Bell (u), where he says: "I do not understand legal fraud. To my mind, it has no more meaning than legal heat or legal cold, legal light or legal shade. There never can be a well-founded complaint of legal fraud, except where some duty is shewn and correlative right, and some violation of that duty and right. And when these exist, it is much better that they should be stated and acted on, than that recourse should be had to a phrase illogical and unmeaning, with the consequent uncertainty." In order, indeed, to render a representation fraudulent in contemplation of law, " it is not necessary that it should be false to the knowledge of the party making it; if it be untrue in fact, and not believed to be true by the party making it, or made recklessly without any knowledge on the subject, and for the purpose of inducing another person to act upon it" (x), that will be sufficient to invalidate a contract made on the faith of such a representation (y). Still, such conduct on the part of the person making the representation is clearly not free from moral obliquity. The deceit, *moreover,. must actually induce the contracting party to enter into the contract. If he contracted, not believing it, or trusting to his own judgment, and not to the representation, he cannot avoid this contract on account of the falsehood (z).1
(q) Lee v. Jones, 34 L. J. (C. P) 131.
(r) 3 Q. B. D. 150; 47 L. J. (Q. B., etc.) 90, reversing 2 Q. B. D. 331, 46 L. J. (Q. B , etc.) 473. (s) Ward v. Hobbs, 4 App. Cas. 13; 48 L. J. (Q. B.) 281.
(t) 11 Q. B. D. 255; 52 L. J. (Q. B.) 609. See also 2 Smith, L. C, note to Pasley v. Freeman, p. 89, 8th ed.
(u) 3 Ex. D. 238, 243; 47 L. J. (Q. B.) 704, 707, 708.
(x) Note to Pasley v. Freeman, 2 Sm. L. C, pp. 89, 90, 8th ed.
(y) See note to Pasley v. Freeman, supra, and the cases cited there, also Joliffe v. Baker, supra.
(z) Moens v. Hey worth, 10 M. & W. 147; Shrewsbury v. Blount, 2 M. & Gr. 475, per Tindal, C. J. See also the judgment of Ld. Blackburn in Smith v. Chad wick, 9 App. Cas. 187, 192.
1 Thus Lord Brougham said, in delivering his judgment in the House of Lords, in the great case of Attwood v. Small, 6 Clark & Fin. 232, that the inference he drew from the authorities was that "general fraudulent conduct signifies nothing; that general dishonesty of purpose signifies nothing; that attempts to overreach go for nothing; that an intention and design to deceive may go for nothing; unless all this dishonesty of purpose, all this fraud, all this intention and design, can be connected with the particular transaction, and not only connected with the particular transaction, but must be made to be the very ground upon which this transaction took place, and must have given rise to this contract. If a mere general intention to overreach were enough, I hardly know a contract, even between persons of very strict morality, that could stand. We generally find the case to be that there has been an attempt of the one party to overreach the other, and the other to overreach the first, but that does not make void the contract." It has therefore been held, that mere general statements of what property would thereafter be worth, afforded no ground for rescission of the contract, the matter being fully within the vendee's own calculation : Donelson v. Weakley, 3 Yerg. 178; and so of any other general representation, open to examination: Strong v. Peters, 2 Root, 93; Bell v. Henderson, 6 How. 311; Anderson v. Hill, 12 Sm. & Mar. 683; Taylor v. Fleet, 4 Barb. 95; Foley v. Cowgill, 5 Blackf. 18. But it must also be observed, that although the subject of the false statement may be one within the vendee's own range of inquiry, yet if the statement is designedly made in order to prevent such inquiry, the rule is otherwise. Thus in Dobell v. Stevens, 3 B. & C. (10 E. C. L. R.) 623, in the negotiation of the sale of the lease and good-will of a public-house, a false representation was made by the vendor with respect to the quantity of beer drawn during a certain period. The books were in the house, and it was part of the defendant's case that the plaintiff might have had access to them, but, notwithstanding that fact, the Court of King's Bench held that an action for damages might, under such circumstances, be sustained; and the same principle will be found applied in the case of Hunt v. Moore, 2 Pa. St. 107; Napier v. Elam, 6 Yerg. 108; Campbell v. Wittingham, 5 J. J. Mar. 96; Buford v. Caldwell, 3 Mo. 477.
It was said, in perhaps the most recent English case on this subject (Watson v. Poulson, 7 Eng. L. & Eq. 588), that " the telling an untruth, knowing it to be an untruth, with intent to induce a man to alter his condition, and his altering his condition in consequence, whereby he sustains damage, fulfil all the requisites to support an action for deceit."