Sec. 304. Vendee Required To Exercise Caution

Again, it is said, "Prudence and caution must be exercised. The representations must be such that an ordinarily prudent man would rely on as true, to justify a person in relying upon them."5 In the same case, it was said: "An instruction which told the jury that if, by an ordinary degree of precaution, the plaintiff could have ascertained the falsity of the representations complained of, then the plaintiff was not entitled to recover, was held a correct statement of the law in Eames v. Morgan, 37 111. 260." In another case,6 it was said: "The general rule is that a purchaser must exercise common prudence, and if he fails to avail himself of the ordinary means of information the law gives him no redress.7 But defendants cannot invoke this rule, because of their active efforts to conceal the condition of the mine, to thwart investigation and inquiry, and in misrepresenting the significance of conditions that were apparent. Such conduct brings the case within the salutary exception designed to avoid encouragement to fraudulent and deceitful practices."8 In Ripy v. Cronan, 115 S. W. 794 (Ky. 1909), the court, after quoting from 20 Cyc. 49, that the rule of caveat emptor applies, states that the exceptions to the rule of caveat emptor are: "First, where confidential relations exist between the two; and, second, where fraud or artifice is used to prevent inquiry or investigation."

3 Citing Story's Eq. Jur., Sec. 207 et seq.; Hadley v. Clinton County Importing Co., 13 Ohio St. R. 502; Bench v. Sheldon, 14 Barb. 66; Paul v. Hadley. 23 Barb. 521.

4 Dambmann v. Schulting. 75 N. T. 61, 62 (1878). See also Denning v. Darling, 2 L. R. A. 743 (Mass. 1889), and note.

5 Press v. Hair, 133 111. App. 534 (1907), (citing Grier v. Puterbaugh. 108 111. 602; Hutchinson v. Lyford, 123 111. 300; Eames v. Morgan, 37 111. 260; Dickinson v. Atkins, 100 111. App. 401).

Sec. 305. Degree Of Caution Required Of Vendee

In Long v. Warren, 68 N. Y. 426 (1876), the representations alleged to be false were as to the non-existence on the farm of a noxious weed known as quack grass, which rendered the farm less valuable. The defendant used no artifice either of word or act to dissuade or turn away or hinder the plaintiff from making inspection of the farm for himself. The plaintiff had passed over the farm, and had he taken ordinary pains to look out for this grass, he would have perceived it. "Where the matter is not peculiarly within the knowledge of the defendant," says the court, "and the plaintiff has the means of obtaining correct information, apart from the statement made to him, he may not recover upon the false declaration.9 To the same effect is Starr v. Bennett, 5 Hill, 303. The representations must be such that the vendee has no means of discovering their falsity. If he does not avail himself of the means of knowledge within his reach, he will not be entitled to the aid of a court of equity.10 It is stated in Smith v. Countryman, 30 N. Y. 681, though obiter perhaps, that statements as to value of property, and the freedom of it from defects which are known, to the one making them, to exist, but which might by the exercise of reasonable diligence be discovered, do not, if false, vitiate the contract. In Vernon v. Keyes, 12 East, 632, affirmed 4 Taunton, 488, it is held that a seller is unquestionably liable to an action of deceit, if he fraudulently misrepresent the quality of the thing sold, to be other than it is, in some particulars, which the buyer has not equal means with himself of knowing.11 At nisi prius, a limitation to the rule was announced as follows: Means unused, of detecting the falsity of representations, are not a bar to an action, but matter for the jury, and if the jury find for the plaintiff, will not be ground for a reversal.12 But we are not now reviewing the verdict of a jury for the plaintiff, but are dealing with the facts as a general proposition as if we sat in the place of a jury, and are not called upon to sanction or disapprove that holding at nisi prius. It is also said in one case, that the very fact of a warranty having been given, would tend to throw the warrantee off his guard, and prevent him from making a close examination.13 But that is where he has taken a covenant, and may rely upon it."

6 Tooker v. Alston. 159 Fed. 603 (1907).

7 Citing Andrus v. St. Louis Smelting Co., 130 U. S. 643; 9 Sup. Ct. 645; 32 L. Ed. 1054.

8 Citing Strand v. Griffith. 38 C. C. A. 444 ; 97 Fed. 854; Henderson v. Henshall. 4 C. C. A. 357; 54 Fed. 320. See also Stewart v. Wyoming Ranch Co., 128 U. S. 383; 9 Sup. Ct. 101; 32 L. Ed. 439.

9 Citing Bayley v. Merrel, Cro. Jac. 386.

10 Citing Tallman v. Green. 3 Sandf. 437.

11 Referring to 1 Kent, 484. 485; Sherwood v. Salmon, 5 Day 439, 449.

12 Citing Bowing v. Stevens, 2 Carr & P. 337.

13Citing Holyday v. Morgan, 28 Law J. Q. B. 9.