In the first place, it is obvious that the fraud must be material to the contract or transaction, which is to be avoided because of it; for if it relate to another matter, or to this only in a trivial and unimportant way, it affords no ground for the action of the court. (o) It must, therefore, relate distinctly and

(o) Thus, it seems that a misrepresentation, by a vendor of a horse, as to the place where he bought it, is not such a material fraud as will avoid the sale of the horse. Geddes v. Pennington, 5 Dow, 159. In Taylor v. Fleet, 1 Barb. 471, it is said, that in order to avoid a contract of sale on the ground of misrepresentation, there must not only have been a misrepresentation of a material fact constituting the basis of the sale, but the purchaser must have made the contract upon the faith and credit of such representation. At least he most so far have relied upon it as that he would not have made the purchase if such representation had not been made. In that case, a person about to purchase a farm, was ignorant of the actual character and capabilities of the land, and had no means of obtaining such knowledge except by information to be derived from others; and the owner, with the knowledge that the purchaser's object was to obtain an early farm, and that his farm was not as early as the lands lying in the neighborhood, represented to such purchaser "that there was no earlier land anywhere about there," and the latter, relying upon the truth of that representation, made the purchase; and, after ascertaining by actual experiment that the land was not what it had been represented to be, he applied to the vendor, within a reasonable time, to rescind the bargain, who refused to do so. Held, that this furnished a sufficient ground for the interference of a court of equity to rescind the contract, even though there was no intention on the part of the vendor to deceive the purchaser. As to the necessity of materiality, see Camp v. Pulver, 5 Barb. 91.

directly to this contract; and it must affect its very essence and substance. (p) But, as before, we must say that there is no positive standard by which to determine whether the fraud be thus material or not. Nor can we give a better rule for deciding the question than this: if the fraud be such, that, had it not been practised, the contract would not have been made, or the transaction completed, then it is material to it; but if it be shown or made probable that the same thing would have been done by the parties, in the same way, if the fraud had not been practised, it cannot be deemed material. Whether the fraud be material or otherwise, seems to be, on the decided weight of authority, a question for the jury and not a question of law; (q) * but

(p) Thus, in Green v. Gosden, 4 Scott, N. R. 13, 3 Man. & G. 446, to a count in debt on a promissory note, the defendant pleaded that the note was obtained from him by the plaintiffs and others in collusion with them, by fraud, covin, and misrepresentation, wherefore the note was void in law; it was held, that this plea was not sustained by evidence, that the note was given by the defendant and another, as sureties, for a sum advanced to a third person by the plaintiffs, who falsely held themselves out to the world as a society formed and acting under certain rules and regulations; the fraud proved not having such a relation to the particular transaction as to amount to fraud in point of law. So in Vane v. Cobbold, 1 Exch. 798, in an action by an allottee of a railway company for the recovery of his deposit, it appeared that the company issued a prospectus, which stated the capital to consist of 60,000 shares of £25 each, and the plaintiff, after having paid his deposit, executed the subscribers' agreement, which contained the usual terms as to the disposition of the deposits; at the time when he executed the deed, the deposits upon 18,160 shares only had been paid, although 35,000 shares had been allotted, which fact was not communicated to him. Held, that the withholding of the above fact did not amount to such a fraud as to avoid the deed, and that the plaintiff was not entitled to recover back his deposit. In Edwards v. Owen, 15 Ohio, 500, it was held, that a special action on the case may be sustained against a debtor for fraudulently representing himself insolvent, and thereby inducing his creditor to discharge a promissory note for less than its value.

(q) Westbury v, Aberdein, 2 M. & W. 267; Lindenau v. Desborough, 8 B. & C. 586; Huguenin v. Rayley, 6 Taunt 186;

Bidault v. Wales, 20 Mo. 546. If the fraud was material to the contract, it has been said that it is not necessary that it should have been practised malo animo. Moens v. Heyworth, 10 M. & W. 155, where Lord Abinger said : "The fraud which vitiates a contract, and gives a party a right to recover, does not in all cases necessarily imply moral turpitude. There may be a misrepresentation as to the facts stated in the contract, all the circumstances in which the party may believe to be true. In policies of insurance, for instance, if an insurer makes a misrepresentation, it vitiates the contract. Such contracts are, it is true, of a peculiar nature, and have relation as well to the rights of the parties as the event. In the case of a contract for the sale of a public-house, if the seller represent by mistake that the house realized more than in fact it did, he would be defrauding the purchaser, and deceiving him; but that might arise from his not having kept proper books, or from non-attention to his affairs; yet, as soon as the other party discovers it, an action may be maintained for the loss consequent upon such misrepresentation, inasmuch as he was thereby induced to give more than the house was worth. That action might be sustained upon an allegation that the representation was false, although the party making it did not know at the time he made it that it was so." And see Lindenau .v. Desborough, supra; Maynard v. Rhodes, 5 Dow. & R. 266; Everett v. Desborough, 5 Bing. 503; Elton v. Larkins, 5 C. & P. 86. But it has been held, that if a fact is collateral only, and the statement of it, though made at the time of entering into the contract, is not embodied in it, the contract cannot be set aside merely on the ground that such statement was untrue; it must be shown that the party making it knew it to it is obvious, that in many cases the jury cannot answer this question without instructions from the court.