The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-03-25

/ 5ud q note TO Benjamin on sales, Sec $50, /
as follows: ''Mere statements Of a vendor, |
either Of real or personal property. not being
in the form of a warranty, as toits value, price
which he has given, or been offered for il are |
held to be immaterial," citing: -
Medbury VS.. Watson, 6 Met. ESQ.
Brown vs.. Castles, IL Cush. $50.
Veasey VS.. Doton, Allen ISL.
Cooper VS.. lowering, LOG Mass. 10.
Money VS.. Miller, l02 Mass. 2l7. ~
Williams VS.. Randall, CO Ne. 81.
Conner VS.. Perkins, l23 Mass. 43l.
"But the utmost limit Of this rule has been
reached in applying it to statements Of the
price paid BY The person himself"
In this note leading case in Massachusetts,
Medbvrv rs; Watson, 6 Met. 746, il incorrectly
stated as an authority to sustain the view that
an action for false and fraudulent representa-
lions as to the price paid by third person for
the property in question, can be maintained.
A careful reading of the case viii show that
an action Of trespass on the case was brought,
not against the vendor but against third per-
son who made the false representations and
the Court say that naked assertions by the
vendor, though known to be false are not &C.
tionahle When vendor of real estate afhrms
to the vendee that his estate is worth so mech,
that he gave so muct for it or has been refused
by him 10 be false and though uttered with q
view to deceive, are not aotionable. They are
the mere afirmations Of the vendor, m which
the vendee cannot safely place confidence and
will not excuse ,he neglect in not examining
for himself and ascertaining what the facts
are, and what credit is to be given to the as
sertions.n This is qualified later on and the
Court say that, fraudulent misrepresentation
of particulars in regard TO the estate, which
| the buyer has not equal means Of knowing aud
where he is induced TO forbear inquiries that
he otherwise would have made are not TO be
viewed in the light Of assertions gratis dioiG,"
and are nctionable." 8..
In Cooper VS. LOrsTiRg the Court say to sup
port an action of deceit, the misrepresentation
must be of q material fact, not within the OBJ
serYation of the other party. The latest
Massachusetts case have seen is Homer VS.
| Perkins l24 Mass. 43l. The Court say if the
representation was a mere affirmation or ex-
preston of opinion in regard to the value Of
| the property he is attempting to sell, these
can never be safely relied upon by the other
party. But if it was intended TO be the state
ment Of fact, to be understood and relied
upon as such, the action would lie Citing
| Manning VS.. Albse IL Allen $40 where q false
representation was made not only as 10 the
value of the bonds offered but alsU as to the
sales Of such bonds in the market al a certain
| price, appearing by public list of sales Of
stocks, which was exhibited as actually taken
place and the action was maintained. The
Court say in this case that 'the representa-
tiou was one which the plaintiff is not shown
10 have had equal means of knowing the
truth or uutruth Of, and on which he might,
without impuiation, rely"
In Moray VS.. Miller, Chapman, C. J. says.
''f false representation relate to material facts
not within the observation of the opposite
party, and are made with intention to deceive,
they are aciipnable: but if the truth can
be ascertained by ordinary diligence they are
not aetiunable.'
In New York State the law is similarly
held. -GAsr vs.. Bu-be' e6 \. Y. 567. Judge
Fulger says The representation Of the value
Of the invention was connected with false
representation of an extriusic fact calculated
10 impose upon the plaintiff, 10 put him off his
guard and to induce him to give credit to the
representation of value. 1t had the effect it
was designed 10 have. He relied in taking
stock in part upon the supposed Judgment Of
other persons who, as he was falsely in
formed had taken a stock in the company. This
case bears close resemblance to the one at
bar. Ellis represented that Wilder the Presi
dent of the Ice Co., and principal owner
would not sell his stock for less than par
moaning to influence Wilcox to buy upon Will
deTs Judgment of the value of the stock that
it was worth par-whereas Wilder would not
sell at all. In the New York case the seller
mentioned the names of persons who lad
taken stock in the company-these mad al
lowed their names to be used as subscriber
for stock and had given notes for the amounts
subscribed for, upon the secret agreement
that the notes should thereafter be given VI
without payment. No exercise of diligence
on the buyers part would be likely to reveal
the fraud, for the couspirators would not dis
close their fraud TO the intending buyer
Whether it was Wilcox's duty to make in.
quiries of Wilder TO ascertain whether Ellis
statement was true or not is the remaining
difficult point TO be decided.
1t will be noticed that in many of the abovC
quoted cases the Court say that the facts mis-.
represented must be one which the buyer hal
has not equal means of knowing" or fact
''not within the observation of the othel
party" or fact which could not be verifeC
'by the exercise of ordinary diligence etc."
The leading case on Misrepresentation il
England is Antrooi VS.. Small Clark and Fin
, nelly House of Lords). Lord Lyndhurs
says where representations are made witt
, respect TO the nature and character Of tn
= property which is to become the subject o
purchase affecting the value of that property
e and those representations turn ont to be incor
! rect and false, to the knowledge of the part,
making them-in a Court of Equity founda
ton is laid for setting aside the contract whicl
4 was founded on a fraudulent basis" II
quotes from Dobell VS.. Stevens B. g. C. 62a
e Here the purchase was of public house;
false representation was made by the yendo
/
e respect to the quantity Of the beer that wa
c drawn during u certain period. The book
J, were in the house; it was part Of the case ths
u the purchaser might have had access to ther
s. if be thought proper; but notwithstandin
3 that circumstance, it being proved the repre-
sensation was false, the action was sustained
Q Lord Wynfori says on p. 500, i'd. al al
II aware that if q person chooses to trust to th
: representations and does not make any induir
that reliance will be sufficient to make OF
: charge of false representations as to 81
aside the contract" If the party think
II proper to inquire etc. it will be otherwise.
+! Judge Cooley on Torts p. 499 says "Wher
s one in selling personal property makes posi-
n tive statements Of material facts upon whic
u the other relies, the vendor is held to IL
truth of the representations etc" Jude
N Cooley however admits that there are cases
tue contrary.
g In HolJrook Vs. Conner 60 Me SIS, it W,
= held by bare majority of the Court thi
u false and fraudulent representations TO pul
Is chaser Of the value of lands as TO the price
81 paid for it etc. are not actionable, because IL
81 purchaser is not justified in placing conidenc
re in them
> So also in Bishop VS.. Small s. Ne |.
OF Misrepresentation either as to what a ID:
tent right cost vendor, OF was sold for b
y him, or as to offers made for it or profits til;
&c could be made from it etc. are not actionable.
x When it is considered that these represents
Is tons not being specific were not capable
ie being verified by the intending buyer by an
inquiry he might make, think the case
d not against the view Of the English case
at Ar,ooOd We. Smell that if the representation
at be relied upon it might be the foundation
ne of an action.
i The Supreme Court Of Michigan holds I'm,
y quivocally that ''When a persons sells b
'r property upon The positive statements of al
10 other OF facts and those facts turn out to
g falsely asserted, be is damaged by the falls,
hood and the false assertion has all the effe
q Of actual fraud" Some VS.. Coreh 20 Mic
Z $50.
e. In Connecticut, Tres VS.. Carter "a Conn. 3:
e; the Court held that "a representation Of
vendor that \. had offered certain sum &
T. the property and stood ready to give It, if u
81 ether party purchased, was directly calculate
g TO effect the value of the property and SUI