gence, enough at least to be misled. The acts of idiots are simply void.

There are, however, persons whose intellectual power, though feeble, is sufficient for carrying on some of the affairs of business. Their acts are not void. The law recognizes that such persons are not upon terms of equality with their fellows, and therefore justly requires of every person who deals with them a high degree of good faith. Acts that might not be held deceptive when practiced on a person of average intellect will be held fraudulent as to one of defective mental powers. The least undue advantage or unfairness taken by one in his dealings with the weak minded, will be laid hold of by the law as a ground for giving redress.

Persons intoxicated fall into the same category with those of feeble intellect. Whoever deals with a drunken person is held to take upon himself the burden of showing good faith. The greater the degree of intoxication, the greater is the necessity for exercising a scrupulous good faith.

And to the extent that their powers may be interfered with by defects, the blind and the deaf stand within the protection of the law.

It is to be noted that the case of persons of weak powers differs slightly from the ordinary one of trust in this In the usual case of trust, the trustee is specially chosen, and extraordinary confidence is actually reposed in him; whereas, in case of persons of weak powers, it often happens that there was really no confidence placed whatever, but in fact the weaker one may have been suspicious, and resisting so far as was within his power. The duty of good

faith to the weak is not upon any special person, but upon any and every person who may chance to deal with them. The similarity of principles upon which relief is granted makes it proper to include this topic under the head of frauds in confidential relations.

Under confidential relations, an active duty is imposed upon the one trusted, and it follows that a fraud may be as easily, and in fact is most often, committed by negative rather than affirmative conduct. The law holds the trustee equally responsible if he fails to speak or act where he should do so, as where he engages in positive misleading practices. The person for whose benefit the trust exists need not usually exercise any care, but may without inquiry rely upon the trustee.

§ 363. Fraud and deception between equals.-As has been stated, the reason why so complete and careful redress is given for frauds done under confidential relations is, that in such relations the victim is off his guard and more or less in the power of the wrongdoer. Where no such confidential relation and hence no misuse of power exists, there is usually less need for the interposition of the courts. The parties being upon equal terms are able and are expected to use due care in protecting themselves. As a general rule, the law will refuse aid to one whose pretended loss by fraud is attributable to his own failure to exercise ordinary diligence and foresight. The question now is, what are the frauds which the law will redress, and what is the ordinary diligence required of every one?

§ 364. Definition.-Fraud or deceit is any trick, collusion, contrivance, false representation or under

hand practice used for the injury of another. It need not be by words. Any positive conduct may be the equivalent of a verbal statement and be a deception. And in some cases silence or inaction may be sufficient to accomplish the fraudulent purpose.

§ 365. Fraud by silence.-In transactions between equals, the mere silence or inaction of one will not be regarded as a fraud, even though by speaking or acting he could have saved or prevented the other from error and loss. As for instance, if one knows there is a valuable bed of ore upon another's land, and without disclosing his knowledge buys the land, such silence is no fraud; for every one is supposed to be entitled to the gains he may make through superior knowledge, so long as he does not engage in underhand practices or tricks. If, however, the silence occurs in connection with any act or statement that gives it point and meaning it may amount to a fraud; as for example, if one stands by and allows his property to be sold as the property of another, or if one is referred to as knowing a statement to be true, and he remains silent in such a way as to create the impression of affirmance. So if one profess to state all of the facts and intentionally omits material parts, it is a fraud. By universal acceptance there are certain acts and statements that presuppose the existence of certain other facts, for instance, the giving of a check upon a bank, even though nothing be said, amounts to the statement that there are funds in the bank for paying it, and if there are not, there may be a gross fraud. While a seller of goods is not always bound to inquire for what purpose the goods are intended to be used, yet

if it is apparent or the seller is informed that the goods are to be used for a specific purpose, the act of selling them will be equivalent to a statement that they are fit for the use intended. In such cases it is the seller's duty to inform the buyer of defects not open to observation of the buyer, and silence may be a fraud. An example of this is the sale to a consumer of provisions apparently sound, but known by the dealer to be wholly unfit; the buyer is not negligent for omitting inquiry as to their fitness, and the seller's silence on the point amounts to a fraud.

§ 366. Equal opportunities for knowledge.Where one party has equal opportunities with the other for knowing or ascertaining the truth, the general rule is that he must avail himself of his opportunities, or be left remediless, if through his want of diligence he is deceived. The decisions are not altogether harmonious, as to what will constitute equal opportunities, and what degree of diligence will be required. It is well settled, however, that if one party by any device disarms the other's suspicions, and induces him to refrain from making any examination he would otherwise have made, relief will be given for the fraud. If the subject as to which a representation is made is not at hand, or if it be of such a nature that an examination is not practicable, there will be no want of diligence in relying upon the representations made, but if they are false the transaction will be fraudulent.

§ 367. Elements of fraud.-In order to make out a cause of action for fraud or deceit, the following elements must concur:

1st. That the defendant made a false representation of a material fact.

2d. That the defendant had knowledge of its falsity. 3d. That the defendant intended it to be acted upon by plaintiff.

4th. That the plaintiff, believing it true, acted upon it to his damage.

These elements will be considered in detail.

§ 368. Representations.-A distinction must be borne in mind between a representation and a warranty. A warranty is part of the contract itself, to be enforced in the same way that the contract is enforced. A representation is not part of the contract, but is one of the reasons or inducements for making a contract. The breach of warranty is remedied by an action on the contract. A false representation is remedied as a tort. Although upon the same state of facts there may be a warranty, as well as representation, and the party injured may elect which remedy he will pursue, it does not follow that in all cases of breach of warranty there has been false representation. It is sometimes of great importance whether the cause of action is upon one or the other. Where the transaction in question is upon writings, the meaning intended by the parties must generally be gathered from the writings, and there will therefore be little difficulty. Where the matter is oral, however, the question is more doubtful, and must be left to a jury to decide, in the light of all the surrounding circumstances.

§ 369. Clearness and certainty.-In order to be a false representation, the words or conduct used must generally be clear and certain and not of vague and