Sec 251

A mere suppression, therefore, must not only be of a material matter, which the other party had no means of discovering, but must relate to a fact which is negatived by the active misconduct of the suppressing party. To impose liability on him he must wrongfully do something to imply the contrary of the fact he suppressed.3 By the tenor of his conduct, such conduct being fraudulently moulded for this purpose, the negation of the suppressed fact must be implied.4

Party suppressing must, to be liable, actively negative the fact suppressed.

1 L. R. 4 Ap. C. 13. It was said by Lord O'Hagan, that the statute above cited was passed for the benefit of the general public, and had nothing to do with the private bargains of individuals.

2 Cogel v. Kniseley, 89 111. 598. As sustaining generally the text, see, in addition to the cases above cited, Price v. Neal, 3 Burr. 1354; Bree v. Holbeck, Doug. 655; Pasley v. Freeman, 3 T. R. 51; Henshaw v. Robins, 9 Met. Mass. 86; Welsh v.

Carter, 1 Wend. 185; Musgrove v. Gibbs, 1 Dall. 217; Levy v. Bank, 4 Dall. 234. There can be no concealment of a fact not known to the party speaking. Spratt v. Ross, 16 Ct. of Sess. 1145.

3 Ward v. Hobbs, L. R. 3 Q. B. D. 150, reversing S. C, L. R. 2 Q. B D. 331, and aff. L. R. 4 Ap. Cas. 13, cited supra, sec 250.

4 Keats v. Cadogan, 10 C. B. 591; Smith v. Hughes, L. R. 6 Q. B. 597;.

Sec 252

Nor is a party bound to correct an error into which he sees the other contracting party has fallen, but which he ster, 65 N. Y. 102. As a case of active concealment see Dameron v. Jamison, 4 Mo. Ap. 299, and see Stephens' App., 87 Penn. St. 202.

Laidlaw v. Organ, 2 Wheat. 178; Hanson v. Edgerly, 29 N. H. 343; Fisher v. Budlong, 10 R. I. 527: Smith v. Countryman, 30 N. Y. 655; Taylor v. Fleet, 4 Barb. 95; McMichael v. Kilmer, 76 N. Y. 36; Donnelly v. State, 2 Dutch. 601; Kintzing v. McElrath, 5 Barr, 467; Harri v. Tyson, 24 Perm. St. 347; McShane v. Hazlehurst, 50 Md. 107; Hadley v. Imp. Co., 13 Oh. St. 502; Frenzel v. Miller, 37 Ind. 1; Mitchell v. McDougall, 62 111. 498; Morris v. Thompson, 85 111. 16; Cogel v. Kniseley, 89 111. 598; Williams v. Spurr, 24 Mich. 335. - As illustrations of active concealment, Mr. Leake (2d ed. 358) cites Udell v. Atherton, 7 H. & N. 172, where a person selling a log of mahogany, turned it so as to conceal a hole, and Schneider v. Heath, 3 Camp. 506, where a person sold a vessel with all faults, and before the sale had taken her from the ways on which she lay, and placed her afloat in a dock for the purpose of.preventing an examination of the bottom. On the other hand, where a governess had been engaged by a writing in which she was described as a "spinster," it was held that the agreement was not annulled by the fact that she had been married and divorced. "There is no allegation," said the court, "of fraud; and short of that, the concealment of a material fact, except in cases of policies of insurance, does not avoid a contract." Fletcher v. Krall, 42 L. J. Q. B. 55.

In Havemeyer v. Havemeyer, N. Y. Court of Appeals, in 1881, the facts were as follows: In the close of November 24, 1875, I., who represented plaintiff and others, owners of stock in the L. Railroad Co. (after offering to Q., a rival proprietor of stock, to work in his interest against the defendants, which offer had been accepted by Q.), called upon defendants, who also owned stock in the same company (the stock owned . by defendants and those represented by I. constituting a majority of the stock), and entered into an agreement with defendants, whereby it was agreed that I. might sell a majority of the stock of the company to Q., with whom negotiations for sale had been had by him, which should include all stock represented by him and owned by defendants, at a specified price. The agreement further provided that there should be no separate sale of any of the stock by any of the parties. Of the fact of the prior offer to and acceptance by Q. defendants had no knowledge, I. having concealed it from them. On the 14th of December, 1875, defendants notified I. that they declined further negotiations for the sale of their stock. About the same time they purchased other stock, which, together with what they owned, constituted a majority of the stock, without that represented by I. In January they sold all of their stock to Q., who, having obtained a majority of the stock, refused to purchase more, and thus the stock represented by I. was greatly diminished in value, and had but little salable value. In an action by plaintiffs against defendants for a violation of the agreement, it was ruled that the concealment from the defendants of the offer of I. to Q., and its acceptance by Q., was a sufficient defence to the action. The court cited Hichens v. Congreve, 4 Russell, 562; Blake's case, 34 Beav. 639; Foss v. Harbottle, 2 Hare, 461; Rawlins v. Wickham, 3 D. G. & J. 304; Conkey v. Bond, 36 N. Y. 428; Getty v. Devlin, 54 id. 403; Getty v. Donnelly, 9 Hun, 603; Place v. Mindid nothing to promote, and which the other party did not state during the negotiations. V., who has land to sell, for instance, may see that P., a purchaser, is under the impression that the soil has particular properties, which it has not. V., who has done nothing to create this impression, is not bound to volunteer to remove it.1 P. could readily, if* he chose, put questions to V., which would either bring out the truth, or, in case of misstatement, get rid of his bargain. But he does not choose to do this; and V. has a right to suppose that P., in thus proceeding without inquiry, has his own information, which may be after all better than that of V.2 And, beside this, negotiations would be interminable, if each party was obliged to search for and rectify the other's latent impressions.3 Of course, if P. says: "The land has certain qualities," etc., and V. assents, this, if the statement is false, is a false representation by V. But unless V. either creates or assents to the misconception, it is not imputable to him.4 And as a general rule, a purchaser of goods is not bound to communicate to his vendor intelligence of facts which may increase the price of the goods, but which were in the range of business sagacity to discover.5