3 Spurr v. Benedict, 99 Mass. 463 ; Watts v. Cummins, 59 Penn. St. 84 ; though see White v. Williams, 48 Barb. 222.

4 See Hammersley v. Biel, 12 CI. & F. 45 ; Prole v. Soady, 2 Giff. 1 ; Loffus v. Maw, 3 Giff. 592; Coverdale v. Eastwood, L. R. 15 Eq. 121 ; Dashwood v. Jerwyn, L. R. 12 Ch. D. 776.

1 Pp. 494, 698.

2 Maunsell v. Hedges White, 4 H. L.

C. 1039.

3 Dashwood v. Jerwyn, L. R. 12 Ch.

D. 776.

4 Alderson v. Maddison, L. R. 5 Ex. D. 293. This was a suit on a promise to make a provision by will. It was held by Stephen, J., that if the representation was not a term in a contract, it amounted to nothing. "It seems to me," he said, "that every representation, false when made or falsified by the event, must operate in one of three ways, if it is to produce any legal consequences. First, it may be a term in a contract, in which case its falsity will, according to circumstances, either render the contract voidable, or render the person making the representation liable either to damages or to a decree that he, or his representatives, shall give effect to the representation. Secondly, it may operate as an estoppel, preventing the person making the representation from denying its truth as against persons whose conduct has been influenced by it. Thirdly, it may amount to a criminal offence." The ruling in Alderson v. Maddison was, according to Mr. Pollock's statement (Pollock. 3d ed. 497), "reversed in C. A. April 13, 1881 (29 W. R. 556 ; L. R. 7 Q. B. D. 174), without discussing this question, on the ground that there was no part performance sufficient to take the case out of the statute of frauds. Thus the general principle that the transaction was a true contract or nothing is, if anything, tacitly affirmed." expressed by him. "The true question," he says,1" is in every case, what were the terms of the contract. But this statement is subject to the qualification, that in particular classes of cases there are fixed rules as to what kind of statements shall be deemed part of the contract; and in one or two cases this rule is extended so as to make it an essential term not merely that the information given shall be true, but that all material information shall be fully, as well as truly given." The position in the last sentence, however, I do not look upon as a qualification of that in the first sentence. It is, in fact, an independent proposition ; and my objection to Mr. Pollock's statement, is that he narrows to certain specified cases; e. g., insurance, suretyship, sales of land, and partnership-that which, as I shall argue in the next section, is a general rule. sec 217. The difficulties which meet us in considering the question of suppression are analogous to those which we encounter when considering the question of omission in criminal practice. It is said, and said properly, that no man can be made indictable for a mere omission ; and yet, on the other hand, we meet with many cases in which what are called "omissions" are made the basis of a conviction.2 Yet, when we analyze these cases, we find that they are all of them not mere abstentions of action, but that they constitute perversions of duty. A switch-tender, for instance, omits to replace a switch, and in consequence a train is wrecked; but this is not.a mere omission, as would be the case if a stranger was charged with the neglect, but it is undertaking to do a particular thing and doing it wrongfully. The same distinction is applicable to omissions by telegraph officers to send telegrams, by physicians to attend patients whose care they have assumed, by parties (e. g., municipal corporations) assuming the care of highways to keep such highways in order. There is, in fact, no indictable act that does not involve an omission, and no indictable omission that does not involve an act. The indictable act involves the omission, because doing the wrong thing involves.

Suppression of facts does not bind unless amounting to distortion of truth.

1 3d ed. 497.

2 See discussion in Wh. Cr. L. 8th ed. sec 125 et seq. Infra, sec 249-50.

the omission of a lesral duty ; the indictable omission involves an act, because omitting a legal duty involves the doing a wrong. The same rule may be laid down with regard to the suppression of truth. No man can be made liable for a mere suppression of any truth he may know, no matter how interesting or important such truth may be. Were it otherwise, life would be occupied in the delivery of interminable orations, which would leave no time even for the full acquisition of the truth which it would become the duty of each speaker to tell on the first impression. Nor is the test a mere sense of responsibility, unless the suppression amounts to a distortion of the truth. By applying this solution, we find that what are called exceptions are in fact consistent with the rule. It is said, for instance, that insurance, suretyship, sales of land, and partnership, are exceptions to the rule that suppression is not in itself actionable, no matter what may be the consequences;1 and cases fallins: under these heads have been regarded as the greatest stumbling blocks in the way of the general recognition of the doctrine (a doctrine which seems almost a truism), that a man cannot be sued contractually on a representation that is not a term in a contract. But when we examine the suppressions in the excepted cases just noticed, it will be found that they are none of them cases of abstention from telling, amounting to mere non-action, but that they are all of them cases of perversion of telling, amounting to distortion of truth. The case is analogous to that of a man employed on a railroad to signalize the approach of a train. He stands at his place of observation, and is to make or cause certain action to designate danger. He continues to stand at his post, but does not make the motion necessary to indicate the approach of danger. This is not omission or suppression, but perversion of truth. So it is with what are called the excepted cases, in which a supposed bare suppression becomes the foundation of a contractual suit.2

1 See Pollock, 3d ed. 500 et seq.

2 That withholding a fact when such withholding makes the attitude of the party holding amount to a negation, is a misrepresentation, see Keates v. Cadogan, 10 C. B. 591, where Jervis,.

C. J., said : "Not removing that delusion (a material mistake which the negotiations showed the purchaser was under), might be taken as equivalent to an express representation." For other cases, see infra, sec 249, 250. See the duty of the party acquainted with the property to give substantially correct information, at all events, to the extent of his own actual knowledge, of all facts material to the description or title of the estate offered for sale, but not of extraneous facts affecting its value: the seller, for example, is not bound to tell the buyer what price he himself gave for the property." But (1) the cases of avoidance of sales cited by Mr. Pollock are cases of actual misrepresentations; and (2) even supposing the rule to be good in England, where the title to land is not a matter of record, in this country the rule does not apply for the reason that the title is a matter of record, to be determined by an official search.1 Even in England it was decided, in the House of Lords,2 that a vendor's silence as to a right of way over land sold by him, of which right of way he was not shown to have been aware, is no cause for setting aside the sale. This decision is undoubtedly severely criticized by Lord St. Leonards,3 and by Mr. Pollock,4 who says that "it seems an extraordinary, not to say dangerous doctrine, to say that a vendor is not bound to know his own title, so far, at least, as with ordinary diligence he may know it." But however this may be in England, the position is not applicable to this country, where a record title is all that is sold and all that is bought.5

The most conspicuous of these is that of an applicant for insurance. He is to make signs, as it were, to indicate certain conditions ; if he has certain maladies, he is to tell; not telling is equivalent to saying he has not these maladies.1 So it is with regard to suretyship. I ask another person to go surety for me, and my attitude to him is that of the insured to the insurer; non-disclosure of my insolvency, for instance, is equivalent to an assertion of solvency. Of family negotiations, also, the same remarks may be made; in negotiations of this class, candor and fulness of explanation are so far required that an omission by a brother, for instance, to state a fact to a brother that the former knows to be important, and knows would be considered important by the latter, is equivalent to a statement that the fact does not exist ;2 and the same observation may be made as to partnership.3 So far as concerns sales of land, the position taken by Mr. Pollock hardly authorizes transactions of this class to be regarded, at least in this country, as different in this respect from sales of personal property. He tells us4 that "a misdescription, materially affecting the value, title, or character of the property sold, will make the contract voidable at the purchaser's option, and this notwithstanding special conditions of sale providing that errors of description shall be matters for compensation only.5 It is further alleged that, "on sales of real property, it is generally Attwood v. Small, 6 Cl. & F. 232 ; Evans v. Edmonds, 13 C. B. 777 ; Horstall v. Thomas, 1 H. & C. 90; Prentiss v. Russ, 16 Me. 30; Paddock v. Strobridge, 29 Vt. 470; Matthews v. Bliss, 22 Pick. 48 ; Otis v. Raymond, 3 Conn. 413 ; Cogel v. Kniseley, 89 111. 598 ; Van Arsdale v. Howard, 5 Ala. 596; Herring.v. Skaggs, 62 Ala. 180. That a man by paying addresses to a woman affirms that he is unmarried, see Pollock v. Sullivan, 53 Vt. 507 ; Bennett v. Beam, 42 Mich. 346. " The silence of the party must amount to a direct affirmation, and must be deemed equivalent to it"-Ludlow, J., aft', in People's Bank's App., 93 Penn. St. 109.

1 See for authorities, infra, sec 256. But the entire omission to answer a question in a written application for insurance does not avoid the policy. Armenia Insurance Co. v. Paul, 91 Penn. St. 520.

2 Infra, sec 256 a; Gordon v. Gordon, 3 Sw. 400 ; Fane v. Fane, L. R. 20 Eq. 698.

3 Pollock, 3d ed. 520; Lindley, i. 579. What has been said in respect to partnership applies to parties proposing business (infra, sec 255), and promoters of companies (infra, sec 255 a).

4 Pollock, 3d ed. 509.

5 To this is cited Flight v. Booth, 1 Bing. N. C. 370.