Sec. 306. Vendee Must Exercise Ordinary Caution

"In the kindred cases of false pretences, the criminal law holds to the rule we have above given, and it has been resolved, that where an exercise of common prudence and caution on the part of the prosecutor, would have enabled him to avoid being imposed upon by the pretence alleged, there can be no conviction.14 The rule is summed up in Addison on Torts: "When the real quality of the thing spoken of is an object obvious to ordinary intelligence, and the parties making and receiving the representations have equal knowledge, or equal means of acquiring information, and the truth or falsity of them may be ascertained by the party interested in knowing, by the exercise of ordinary inquiry and diligence, and they are not made for the purpose of throwing him off his guard, and directing him from making the inquiry and examination, which every prudent person ought to make, there is no warranty of the truth of the representations, or that they are as they are stated to be, and there are no false and fraudulent warranties, within the legal definition of that phrase, upon which an action can be maintained. The rule is comprehensively stated as follows, by the United States Supreme Court in Slaughter's Administrators v. Gerson, 13 Wall. 383: 'They must be representations relating to a matter as to which the complaining party did not have at hand the means of knowledge. Where means of knowledge are at hand and equally available to both parties, and the subject of the purchase is equally open to their inspection, if the purchaser does not avail himself of those means and opportunities, he will not be heard to say in impeachment of the contract of sale that he was drawn into it by the vendor's misrepresentations.' (See also Davis v. Sims, Lalor's Hill and Denio, 234; S. In. Co. v. Adam, "Citing People v. Williams, 4 Hill 9.

23 Pick, 256; Mooney v. Miller, 102 Mass. 220.) Some of the cases cited were of sales of land."15

Sec. 307. Negligence No Bar To Relief In Cases Of Wilful Fraud

"The principles laid down in Long v. Warren, and the cases upon which it rests, have never been applied in this state (New York) to a case where it is simply sought to make an instrument, which by mistake or fraud fails to express the prior agreement between the parties, conform to such agreement. The authority of that case should not be extended to cases not clearly within the principles there laid down. It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded when he demands relief that he ought not to have believed or trusted him. Where one sues another for negligence his own negligence contributing to the injury will constitute a defense to the action; but where one sues another for a positive, wilful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise, the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evil-doers."16

Where there is no fraud or circumvention, some authorities hold that it is not for the courts to relieve a party from the mere results of his own carelessness, negligence or laches, not induced by the conduct of the other party. "But if a party is led to forbear inquiry by false representations as to matters material and not collateral, intentionally made with knowledge of their falsity for the purpose of inducing such forbearance, or by fraudulent artifice or deceitful maneuvers resorted to with the like knowledge and purpose, upon which he in fact relies, the question of whether a careful and prudent man would have been misled in like circumstances is immaterial."17 The rule that negligence of the party defrauded in failing to read a paper which he signed precludes him from attacking its validity, does not prevail in this state (New York) though, as was said in Wilcox v. American Tel. Co., 176 N. Y. 117 (1903), there may be dicta in the text books and decisions in other jurisdictions to that effect.18 It was expressly repudiated by the New York Court of Appeals in Albany City Savings Institution v. Burdick, 87 N. Y. 40.19 The duty of self-protection is also discussed in Smith v. Countryman, 30 N. Y. 655 (1864).

15 Long v. Warren, 68 N. Y. 426 (1876). See also Brauckman v. Leighton, 60 Mo. App. 43 (1894).

16 Albany City Savings Inst. v. Burdick, 87 N. Y. 49 (1882); Judd v. Walker. 114 S. W. 979 (Mo. 1908) ; Banking Co. v. Cunningham, 103 Me. 466 (1908). (citing Livingston v. Strong, 107 111. 295) ; V. S. Gypsum Co. v. Shields, 106 S. W. 724 (Tex. 1908); Och v. M. K. & T. By. Co., 130 Mo. 71, 72 (1895).

17 Crompton v. Beedle, 75 Atl. 336 (Vt. 1910). 18And see Rollins v. Quimby. 200 Mass. 162 (1908).

19See also Welles v. Yates, 44 N. Y. 525 (1871); Smith v. Smith, 134 N. Y. 62 (1892).