Arizona republican., 1897-10-12

Nter how or in what manner, or to what extent Warnar and his cohorts | imposed on and deceived Lawler and Wells, the fact nevertheless stands out bold and prominent that they are the only ones who have not suffer- ed thereby; and that these plaintiffs, as a final result of all these transac- tions and dealings, between Lawler i and Wells, are the victims of great wrong of which the defendants have reaped almost the entire benefits and for which they have no redress, if this court is powerless to afford them any relief.
 l At the same time, it is not the duty. nor is 1t within the province of a court of equity to infiict punishment upon one party to a suit on account of his misconduct, except in so far as 1t IS necessary in order to protect the rights of one who is innocent; nor is such innocent party entitled to be placed in any better or more advan- tageous position than he would have been had the wrong not been commit ted; while, on the other hand, if these l defendants have by their acts and words and silence and by the accept ance Of the fruits and benefits of the ! fraudulent acts of others, placed themselves in such a relation with these plaintiffs, either consciously or unconsclously, as to impose upon them any duty or obligation to the plaintiffs, then that is relationship which they cannot take on and put off at pleasure, but is one which is in the eyes of the law, binding and irrevoc- able forever
 From the foregoing, it seems to me that the question and the only ques- is: are these defendants in any way to blame or responsible for the con- dition in which plaintiffs find them selves. Have they received and ac- cepted the fruits and benefits of the fraudulent acts of Warmer and his associates as regards these plaintiffs, under such circumstances and condi- tions as to impose upon them any duty or obligation to treat plaintiffs in a fair and equitable manner; or in other words, do all the facts, cir cumstances and conditions surround ing these transactions, constitute as against plaintiffs, a constructive fraud, such as vii thorize court of equity to grant~ plaintiffs relief therefrcm; and prevent defendants from enforcing against them their strict, naked, legal rights under the Cowland agreement?
 For, it cannot be, and is not claim ed, that there is anything in this case showing, or tending to show that Lawler and Wells were guilty of any
 actual fraud, or any positive decep- ton or misrepresentation practiced upon any of these stockholders in or der to induce them to part with their
 money; for up to certain time, at least, they were all strangers, one to the other, strangers in fact and stran- gers in law, owing no duty, one to the
 other.
 The fraud, if any, then, is construc- tive, such as the law infers either from the relation of the parties or the cir
 cumstances and conditions by which
 they are surrounded; and 1t belongs
 to class of constructive frauds of large extent and which are unknown
 in courts of law; and over which courts of equity exercise an exclusive and at the same time..a a very. salutary
 jurisdiction. 1t consists of that class
 of frauds wherein a man, designfdly or knowingly, produces a false 'im-
 pression upon another who is there
 by drawn into some act or transac-
 tion injurious to his rights and inter
 ests. No one can deny that if a party
 by wilful suggestion of a falsehood prejudiceS another who has a right
 to a full and correct representation of the fact his claim ought in con-
 science to be postponed to that of the person whose confidence was induced by the representations.
 Can there be any real difference be- tween an express representation and one that is naturally or necessarily implied from the circumstances? The law, as understand it, is, that a party who enables another to com- init fraud, is answerable for the consequences; and this is true, even 1, though he do it inmocently and un- 1, consciously, if, after being fully ad- vised of the effect and result of his . innocent and unconscious acts, he shares in the results and benefits of
 the false impressions so induced. , In many cases, a man may be in nocently silent, but, in other cases,
 he is bound to speak out, and his very
 silence becomes as expressive as if he had openly consented to what was said or done and had become a party . to the transaction
 Thus, if one having title to real
 estate which is offered for sale, and knowing his title stands by and en-
 courages the sale, or does not forbid , it, or make known his title and claims . thereto, he is estopped to dispute the
 validity of the purchasers title; and , this is so, whether he receives the
 consideration or not; how much
 stronger then are the equities of the , purchaser under those circumstances
 when it can be shown that the con sideration paid to the fraudulent ven- Y dor passed into the hands of the real ' owner. Tt is also true that if a party having title stands silently by and allows an innocent purchaser to make improvements and eXpend money without giving him notice, courts of
 equity will not allow him to assert U l la