Sec 242a

It is not a sufficient reply, that a part of the representations made by the party charged were true. No body of representations can be wholly false; and, in fact, there is no single representation that has not in it some element of truth. "Where a party has induced another to act on the faith of several representations made to him, any one of which he has made fraudulently, he cannot set up the transaction by showing that every other representation was truly and honestly made."2 "It is not sufficient for him to show that there were other representations or inducements in operation, without further proving that the agreement was due to them only, to the entire exclusion of the false representation."3

Sec 243

There must be proof, also, in cases of this class, that injury was actually sustained.4 It is, therefore, not enough that there should be a mere exposure to loss, if no loss has accrued,5 though it is enough if a party has been induced by the defendant's fraud to give a security not yet paid,1 or to give a higher price than would otherwise have been given.2 But where no damage appreciable in law is sustained, no causal relation between fraud and injury is established.3 A fortiori, a false statement not made until after the bargain is consummated does not expose the party making it to liability.4 Loss to the party defrauded, not gain to the party defrauding, is the criterion.5 Inducing a party, therefore, by arts not in themselves criminal to pay a debt justly due by him is not actionable.6

Fraud need not be sole motive.

Injury must be actually sustained.

Downing, 76 111. 71; Attwood v. Small, 6 Cl. & F. 232; Traill v. Baring, 4 D. J. S. 318; Percival v. Harger, 40 Iowa, 286; Hall v. Thompson, 1 Sm. & M. 443; Clopton v. Cozart, 13 Sm. & M. 363.

1 Metcalf v. Putnam, 9 Allen, 97; Story's Eq. Jur. 12th ed. sec 113, 120, 138 et seq.

2 Cranworth, L. J., in Reynell v. Sprye, 1 De G. M. & G. 656; Wh. Cr. L. 8th ed. sec 1176.

3 Leake, 2d ed. 379, citing Turner, L. J., Nicol's case, 3 D. & J. 387; and see to same effect Clarke v. Dixon, 6 C. B. N. S. 453; Smith v. Kay, 7 H. L.

Cas. 750; R. v. Hewgill, Dears. 315; R. v. English, 12 Cox C. C. 171; State v. Mills, 17 Me. 211; State v. Dunlap, 24 Me. 77; Com. v. Coe, 115 Mass. 481; People v. Haynes, 14 Wend. 546; Thomas v. People, 34 N. Y. 351; Morgan v. Skiddy, 62 N. Y. 319; Shaw v. Stines, 8 Bosw. 157; State v. Thatcher, 35 N. J. L. 445.

4 See cases cited to last section.

5 Hemingway v. Hamilton, 4 M. & W. 115; Freeman v. Venner, 120 Mass. 424; see Bradley v. Fuller, 118 Mass. 239; Abbey v. Dewey, 25 Penn. St. 413; Servis v. Cooper, 4 Vroom, 68.

Sec 244

Hence, as a general rule, applicable to all cases of false representation, it may be added, that where the false statement is not believed by the party to whom it is made, or even if believed, is not the consideration of the bargain, the party making it is not chargeable with deceit.7 Thus, Barnum, to take an illustration from a recent German writer,8 announced some years ago "Washington's nurse" as a show, and the part was personated by an old negress named Joyce Heath. She was not really Washington's nurse, and if the statement had been believed, there was no concurrence of minds as to the thing the visitor paid to see. But the statement was not believed; or, if it was believed, it was not the consideration of going to the show. That consideration was the desire for amusement, not obtaining some particular thing. In other words, there must be a causal relation, as has been already stated, between the false statement and the loss.1 But when fraudulent statements are shown to have been made by one party, to have been acted on by the other party, the burden will be on the former to show that those statements were not believed by the latter.2 On the other hand, when the statement is one which the party to whom it is made has at hand the immediate means of testing, he cannot, if he does not obtain an express warranty as a substitute for inspection, recover, if he neglects to use such means. In such case the false pretence must be looked upon as an appeal rather than a statement.3 This rule applies to sales of real as well as to sales of personal property. Where, for instance, in a New York case in 1880, a purchaser under an oral agreement to convey was entitled to a deed with covenants of warranty, but after paying the price of the land, and demanding and being refused a warranty deed, accepted a deed without a warranty, holding after inquiries of his own that the title was good, it was held that in the absence of proof of fraud, he was not entitled to relief on account of a subsequently discovered incumbrance.4

The losing party must believe the false statement.

1 Hubbard v. Briggs, 31 N. Y. 518.

2 Kerr, F. & M. 73; Reese River Mining Co., L. R. 3 Ch. App. 611; Hallows v. Fernie, L. R. 3 Eq. 536; Nowlan v. Cain, 3 Allen, 263; Smith v. Countryman, 30 N. Y. 655; Melendy v. Keen, 89 111. 395.

3 Bigelow on Fraud, 86-7; Foster v. Charles, 6 Bing. 396; Clarke v. White, 12 Pet. 178; Morgan v. Bliss, 2 Mass. 112; Fuller v. Hodgdon, 25 Me. 243; Hutchins v. Hutchins, 7 Hill, 104; Dung v. Parker, 52 N. Y. 494; Ely v. Stewart, 2 Md. 408; Marr's App., 78 Penn. St. 69; Meyer v. Yesser, 32 Ind. 294; Smith v. Brittenham, 98 111. 188; Missouri Valley Co. v. Bushnell, 11 Neb. 193; Cunningham v. Shields, 4.

Hayw. 44; Farrar v. Alston, 1 Dev. 69; Bailey v. Smock, 61 Mo. 213.

4 State v. Church, 43 Conn. 471; State v. Vanderbilt, 3 Dutch. 328; State v. Tomlin, 5 Dutch. 14; Fulton v. Lofts, 63 N. C. 393.

5 Wells, J., Fisher v.Mellen, 103 Mass. 505; and see Benj. on Sales, 3d Am. ed. sec 429, citing Hanson v. Edger-ly, 29 N. H. 354; Milliken v. Thorn-dike, 106 Mass. 385; Phipps v. Buck-man, 30 Penn. St. 402; Bartlett v. Blaine, 83 111. 25; see supra, sec 238; notes to Chandeler v. Lopus, 1 Smith's L. C. 7th Am. ed. 299 et seq.

6 Brown v. Blunt, 73 Me.

7 See supra, sec 212; Howell v. Biddle-comb, 62 Barb. 131.

8 Merkel, Abhandlungen, etc.