Neither party is bound to correct the other's unexpressed misconceptions.

1 See Law v. Grant, 37 Wis. 548.

2 Rawle v. Ins. Co., 27 N. Y. 282; Morrison v. Ins. Co., 18 Mo. 262; Keith v. Ins. Co., 52 111. 518.

8 See supra, sec 250.

4 Smith v. Hughes, L. R. 6 Q. B. 597; Larry v. Sherburne, 2 Allen, 34; Donnelly v. State, 2 Dutch. 601.

5 Kintzing v. McElrath, 5 Barr, 467; Butler's App., 26 Penn. St. 63; Bartle v. Saunders, 2 Grant, Penn. 199. Mr. Pollock (3d ed. 527), on the above topic, cites with approval the ruling of the U. S. supreme court in Laidlaw v. Organ, 2 Wheat. 178 (declaring it to be almost exactly parallel to Smith p.

Hughes, L. R. 6 Q. B. 597), which he thus states: "The contract was a sale of tobacco. On the morning of the sale the buyers knew, but the sellers did not know, that peace had been concluded between the United States and England. The sellers asked if there was any news affecting the market price. The buyers gave no answer, and the sellers did not insist on having one, and it was held that the silence of the buyers was not a fraudulent concealment. And, notwithstanding that this decision has been criticized," continues Mr. Pollock, referring to Story's Eq. Jur. sec 149, "it seems right; for silence in such a case is of itself equivalent at most to saying, 'It is not our business to tell you;' which, indeed, as a part of the general law, the sec 253. It has just been noticed that a party is not bound to contradict another's unexpressed misconceptions. It may be other party may be presumed to know already. The real question in such a case is, whether there was nothing beyond mere silence. If there is evidence of any departure from the attitude of passive acquiescence, to that extent there is evidence of fraud; and perhaps it is not too much to say that the court should be astute to find it." And Mr. Pollock adds in a note that the conclusion of the supreme court, as above given, is in effect adopted as an illustration to s. 17 of the Indian Contract Act: "A. and B., traders, enter upon a contract. A. has private information of a change in prices which would affect B.'s willingness to proceed with the contract. A. is not bound to proceed with the contract."

That when there is no fiduciary relation, a vendor is not obliged to disclose any facts, not specially called for, which may affect the market value, but which do not conflict with any allegations implied in the conditions of sale, see New Sombrero Phosphate Co. v. Erlanger, L. R. 5 Ch. Div. 73; Dens-more Oil Co. v. Densmore, 64 Penn. St. 43. That a purchaser, aware of the existence of a mine on land, is not bound to disclose the fact to the vendor, he being concerned in no misrepresentation, see Fox v. Mackreth, 2 Bro. C. C. 400; Harris v. Tyson, 24 Penn. St. 347; Smith v. Beatty, 2 Ired. Eq. 756; Williams v. Spurr, 24 Mich. 335; Caples v. Steel, 7 Oregon, 491; though see Williams v. Beazley, 3 J. J. Marsh. 577. In Turner v. Harvey, Jac. 169; Lord Thurlow said that a purchaser knowing of a mine on land, was not bound to disclose the fact to the vendor. That a lessee, taking a lease under a mistaken belief that there was coal in the land, is bound, see Jefferys v. Fairs, the cost price, which he said was $12,000. This plan was carried out. Boyd and others formed a company to which the land was sold at $40,000. The profits were divided with McEl-henny, and the company filed a bill against his administrators to recover the money paid to him out of the treasury as part of the $40,000 purchase-money. False representations as to the cost of the land were alleged and proved to have been made, and it was also shown that McElhenny never was the owner of the land, though it was ostensibly sold as his to the promoters, who in turn sold it to the company. This court, Thompson, C. J., in speaking of the transaction, said: 'It nowhere appears that McElhenny, the purchaser from Hubert, the original owner, did it as the agent of Messrs. Baird, Boyd & Co., and others, although he bought it to sell again, no doubt. He had a perfect right, therefore, to deal with them at arm's length, as it seems he did;' and again, 'If the property was not purchased by McElhenny for the use, and as agent of the company, but for his own use (and this is the proof in the case), he might sell it at a profit most assuredly. No subsequent purchasers from his vendees would have any right to call upon him to account for the profit at which he sold to them."

L. R. 4 C. D. 448; and see, as to error in motive, supra, sec 193.

In Lungren v. Pennell, Sup. Ct. Penn. 1881 (10 Weekly Notes, 297), it was held that vendors, unless occupying a fiduciary relation, are not bound to disclose to their vendees the prices at which they obtained the property sold. " The principles which control such a case," said Green, J., giving the opinion of the court, " are not difficult of statement or application. Our own case of Densmore Oil Co. v. Densmore (64 Penn. St. 14 P. F. S. 43) furnishes the test. We there held 'that any man or number of men, who are the owners of any kind of property, real or personal, may form a partnership or association with others, and sell that property to the association at any price which may be agreed upon between them, no matter what it may originally have cost, provided there be no fraudulent misrepresentation made by the vendors to their associates. They are not bound to disclose the profit which they may realize by the transaction. They were in no sense agents or trustees in the original purchase, and it follows that there is no confidential relation between the parties which affects them with any trust. It is like any other case of vendor and vendee. They deal at arm's length. Their partners are in no better position than strangers. They must exercise their own judgment as to the value of what they buy.'

"In the case of McElhenny's Appeal (61 Penn. St. 11 P. F. S. 188), McEl-henny, who represented himself as the owner of the land, but in fact was not, agreed with Boyd and others that if they could sell it for $40,000 they should share the profits with him over added, that even when a misconception is expressed, a party hearing it is not necessarily bound to correct it. It may be as to a collateral matter, or as to a matter in respect to which the party's attitude does not require him to speak, as where a congregation listens in silence to a clergyman's statement,1 or a party in court listens to the statements of a witness under examination.2 A party's mental condition, also, and the degree of attention he was capable of paying, is to be taken into account when he is charged with assenting to statements made in his presence.3 Nor is a party bound to make re-- sponse to the intrusive comments of a stranger uttered while listening to a negotiation.4 It is otherwise, where there is a suppression of a matter a party is bound in law to disclose.5

Nor is a party bound by his silence on a matter as to which he is not called upon to speak.

Where, however, the misunderstanding was promoted by a prior statement of the party, which statement, though true at the time, subsequently, by a change of circumstances, becomes false, this amounts to fraud. Traill v. Baring, 33 L. J. C. 54; Reynell v. Sprye, 1 D. M. & G. 660; and cases cited supra.

1 Johnson v. Trinity Church, 11 Allen, 123.

2 See Wh. on Ev. sec 1138 et seg. for other exceptions.

3 Ibid.

4 Williams v. Beazley, 3 J. J. Marsh. 577.

5 Proudfoot v. Montefiore, L. R. 2 Q.

B. 511; Harrower v. Hutchinson, L. R. 5 Q. B. 584; Pidcock v. Bishop, 3 B. &

C. 605; Junkins v. Simpson, 14 Me. 364; Grove v. Hodges, 55 Penn. St. 504; Mitchell v. McDougall, 62 111. 498; McAdams v. Cates, 24 Mo. 223. "It would be an error," said Lord Hath-erley, in Phillips v. Homfray, L. R. 6 Ch. 779, " to say generally that you guarantee does not involve such fiduciary relationship as requires, in those inducing it, a fuller disclosure than in other ordinary contracts. It is " not a correct proposition, that the same rule prevails in case of guarantees as in insurances of ships, that all the material circumstances known to the insured are to be disclosed, though there should be no fraud in the concealment."1 - Delicate questions arise when the party suppressing is not a technical trustee, but at the same time receives peculiar confidence from the party with whom he negotiates. In such cases there are two extremes to be avoided. On the one side, it is not to be maintained that any one who chooses to say to me, "I put peculiar confidence in you," should make it necessary for me, in any negotiation I may have with him, to disclose all that I know about the object of our negotiation. The subject may be very intricate, and may have numerous ramifications, as is the case, for instance, with that of the market value of most railroad securities; and for a well-informed specialist in this line to tell all that he may have learned on the subject after, it may be, a familiarity of years, would take an amount of time and trouble incompatible with the prompt discharge of business. And even were the narration undertaken, it could not be faithfully completed. There is no object so clearly defined as to be susceptible of absolutely accurate description; there are no words that can be used in which some ambiguity does not lurk.2 It is absurd, therefore, to say that the mere fact of a party appealing to me to tell him everything, or the mere fact that he puts special trust in me, makes it necessary that I should tell him everything. And it is equally absurd to say, that a party is to be invested with the responsibilities of a trustee, unless he assumes those responsibilities. On the other hand, if I hold myself out as specially versed in a particular topic, and if I invite confidence in myself as so versed, and assume a confidential attitude to persons coming to me to deal with me, then, though I am not required to make a statement of all I know when such a statement would impose on me a burden too heavy to be consistent with prompt discharge of business, yet I am bound to acquaint a party negotiating with me on this basis with any material facts which, I knowing them but he being ignorant of them, might deter him if he knew them from completing the bargain he is negotiating with me. This is not because I am his trustee, or occupy to him a fiduciary relation, as is the case with the parties bound under the principles enumerated in the first part of this section. But it is because, if I hold myself out as a specialist in a particular line of business, and accept an appeal to me for information and advice, I cannot withhold facts the knowledge of which would probably deter the party applying to me from making with me the bargain I propose.1