Gambar halaman


to be protected as agent, to have given notice of its vincunt legem--and the agreement into which the agency.” See, also, Schnell v. Stephens, 50 Mo. 379, defendants entered was a waiver of the right to take which was an action against auctioneers, upon an advantage of the statute.” implied warranty of title. The court says: "The mere fact that defendants were acting as auctioneers was not of itself notice that they were not selling their

In Smith v. Read, 6 Daly, 33, the New York Court own goods, and they must be deemed to have been of Common Pleas decides that a boarding-house vendors and responsible as such for title, unless they keeper is liable for the negligence of his servants in disclosed at the time the name of their principal. the care of a boarder's property. In this case the See, also, Snyder v. Hord, 8 Tex. 101 ; Canal Bk. v. housekeeper, employed by a boarding house keeper, Bk. of Albany, 1 Hill, 287 : Mills v. Hunt, 17 Wend. negligently allowed a stranger to go alone into a 333, and 20 id. 431.

boarder's room where he stole certain of the board

er's property. The court held that the boardingIn Sprague v. Dun et al., decided by the Phila- house keeper was liable to the boarder for his loss. delphia Court of Common Pleas on the 6th of The point in the case is much discussed in Dausey v. April last, the action was against a well-known Richardson, 3 El. & Bl. 144. In that case the quescommercial agency which undertakes for a tion was whether the defendant, a boarding-house sideration to procure accurate information for keeper, was liable for the loss of a dressing case beits customers in regard to the standing, responsibil- longing to a boarder which was placed in the hall ity, means and credit, of men in business in the just previous to the departure of the guest, and had United States and Canada. Plaintiff, who was a been stolen by a thief who entered by the ball door druggist and a customer of this agency, inquired that had been negligently left open by the boardingat its office in Mobile with regard to the credit and house keeper's servants. The court were divided, character of one Getz. He was informed that both and no authoritative decision was made. In Holder were good, and was also shown a book in which v. Soulby, 8 C. B. (N. S.) 35, it was held that Getz was described as possessing a considerable the keeper of a lodging-house is under no obligaamount of real and personal property, and as one tion to take care of his lodgers' goods, and consewho might be trusted to any reasonable amount. quently is not liable for their loss, but it is intiPlaintiff had been for some time associated in busi-mated in the opinion of Erle, C. J., that if the loss ness transactions with Getz, and was in the habit of results from gross negligence on the part of the raising money with his aid and extending a like lodging-house keeper, he will be liable. The liahelp to him. Plaintiff claimed that, in consequence bility of an innkeeper is much greater, being that of the information received, he was led to put his of an insurer, and he is bound to make good any name to various accommodation notes which were loss, with some rare exceptions. Hulett v. Swift, 33 also signed or indorsed by Getz, and discounted at N. Y. 571. The court, in the principal case, says the bank, and the proceeds divided between Getz that every objection which can be urged against and plaintiff. Getz failed not long afterward charging a boarding-house keeper for the loss of without paying any part of these notes. The plain- his guest's goods will, upon reflection, be found to tiff, when he made his contract with the agency, apply with equal force to the innkeeper. And this signed a stipulation that the information derived by especially since the statute of New York gives him him therefrom would be used exclusively for the a lien upon the goods of his guest by which he can “ legitimate business of his establishment,” and it enforce summary payment of his reasonable charges. was claimed as a defense that the floating of com- In Ingalsbee v. Wood, 36 Barb. 452, the court, speakmercial paper was not a part of the legitimate busi- ing of the innkeeper's lien, says: * The lien and ness of plaintiff, and defendants were not liable for liability must stand or fall together.” If the boardany loss that might happen therefrom. A further ing-house keeper possesses the innkeeper's lien he defense was that the representation as to Getz's must take the innkeeper's liability, especially as he responsibility not being in writing, signed by has the advantage over the innkeeper of being able defendants, was void as an agreement under the to refuse, at his option, any applicant for board. statute and furnished no ground of action. The The rule imposing an extraordinary liability upon court said that the first ground of defense was an innkeeper had its origin in a peculiar state of tenable, but that the second was not, saying as to society which does not exist at the present time, but the latter that it is an established rule that reme- public policy forbids a relaxation in its vigor. dial statutes shall be read with a due regard for the Hulett v. Swift, supra. In Buddenberg v. Benner, 1 object which the Legislature had in view, and this Hilt. 84, the doctrine of the principal case is asin the case of the act in question was not to relax serted, although it was assumed in that case that the bonds of contract, but to guard against loose the defendant was an innkeeper. See, also, Jones v. and unfounded charges of fraud-modus et contentio | Morrill, 42 Barb. 623.

could not recover. The learned judge remarked PAYMENT OF NOTES PAYABLE AT BANK.

arguendo that “this payment was valid as against T is the popular conception that a bank is bound the customer of the defendant, the maker of the

I .

payable at its counter, provided it have sufficient There was a specific direction accompanying the defunds of the drawer on deposit; but this, like a great posit as to its application, and it is generally held many other popular notions of law, if in any respect that where moneys are deposited for a specific purtrue, is subject to numerous limitations and excep- pose with notice to the bank, or where it is accomtions.

panied by specific directions as to its application, It is well settled that the deposit of money in a the bank is bound to follow such directions, and bank generally creates simply the relation of debtor cannot even apply the deposit to a debt due it. and creditor between the bank and the depositor. Bank of the United States v. Macalester, 9 Penn. St. Marsh v. Oneida Central Bank, 34 Barb. 298; Ketch- 475; Smuller v. Union Canal Co., 37 id. 68; Farley um v. Stevens, 6 Duer, 463; affirmed, 19 N. Y. 499; v. Turner, 26 L. J. Ch. 710. Thus, in Wilson v. Beckwith v. Union Bank, 5 Seld. 211; Commercial Dawson, 52 Ind. 513, the principal on a promissory Bank v. Hughes, 11 Paige, 94; Dykers v. Leather note due a bank, after maturity of the note, deManuf. Bank, id. 612; Bank of Republic v. Millard, posited and checked out more money than was suf10 Wall. 152; First Nat. Bank v. Whitman, 94 U. S. ficient to pay the note, but under a special agreement 343; Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. with the bank when the deposits were made that 823; S. C., 7 Am. Rep. 314; Carr v. Nat. Security they were to be used to pay checks, and it was held Bank, 9 Am. Rep. 6 ; Case v. Henderson, 8id. 590; that the moneys could not have been applied on the Re Bank of Madison, 5 Biss. 515. And it has been, note, and that a surety thereon was not discharged. therefore, frequently held that there is no privity So if a depositor notify a bank not to pay a note between the holder of a check and the bank on drawn payable at its counter, it is bound to comply. which it is drawn, and that, therefore, such holder Egerton v. Fulton Nat. Bank, 43 How. Pr. 216. has no right of action against the bank for refusing But the depositor only can sue a bank for failing to pay the check on presentation. Ætna Nat. Bank to follow his directions as to the application of a v. Fourth Nat. Bank, supra; Carr v. Nat. Security deposit; no right of action exists in the holder of a Bank, supra; Case v. Henderson, supra, and the other note. And it may be doubted whether a bank would cases above cited. It is held otherwise in Illinois be liable to a depositor for failing to pay a note or and Kentucky, but the unbroken current of au- check in the absence of a specific agreement so to thority elsewhere is to the effect above stated. See do. In Thatcher v. Bunk, 5 Sandf. 121, it was held Union Nat. Bank v. Ocean County Bank, 22 Am. Rep. that such an agreement would be implied between 185, and note.

a bank and its customers, but must be proved as If a bank is not bound to pay the checks of its between the bank and those not regularly dealcustomers it is equally not bound to pay their notes ing with it. drawn payable at the bank. In Ætna Nat. Bank It may be stated as a general rule that a bank has v. Fourth Nat. Bank, Allen, J., delivering the judg- a right, in the absence of instructions to the conment of the court, said: "An acceptance or promis- trary, to apply moneys on deposit, to the payment sory note thus payable (that is payable at the bank] of notes and checks drawn upon it, or payable by it. is, if the party is in funds, that is, has the amount Mandeville v. Union Bank, 9 Cranch, 9; Griffin v. to his credit, equivalent to a check; and it is in ef-Rice, 1 Hilt. 184. But the Supreme Court of Illifect an order or draft on the banker, in favor of the nois seems to hold a different view. holder, for the amount of the note or acceptance." In Wood v. Merchants' Saving Co., 41 Ill. 267, the

That case shows very conclusively that a bank is position seems to have been taken that a bank has no under no legal obligation to a stranger holding a right to pay a note payable at its counter out of funds note payable at its counter. The facts were these: on general deposit without some special authority or The Florence Mills having a balance of $694 to its direction so to do. The action was on a note payable credit with the defendant bank, sent to it on April at the banking-house of one Conrad, and the de2d, by mail, a check on another bank for $4,895, fense was that the maker had money on deposit with a letter containing the direction : “Please credit with Conrad when the note was due; that the holder our account and charge us our note of $5,000 due without procuring such money, as he had “the right the 4th inst." The check was received and credited and opportunity” to do, had the note marked on the 3d, and on the same day the defendant paid “good” and departed, and that afterward the banker a past due note of $5,000 of the Florence Mills, pay- failed. The court said: "Had the holder this able at defendant's bank and charged it to the ac- right, and had Conrad any authority whatever count. On the 4th the plaintiff presented the note to pay the note, out of the funds on deposit in his referred to in the letter, and payment being refused, bank to the credit of the makers ? The custom brought suit. The court held that the plaintiff'sought to be established among bankers has nothing,

in our judgment, to do with the question. What is so to do. It is not according to the usage of banks the effect of making a note payable at a particular to pay out money except upon checks or drafts place? Was it ever before heard, that the effect drawn by its creditors having funds in the bank. was to transfer, ipso facto, the money at the place No case can be found, where, in such case, a bank belonging to the makers, absolutely to the holder, has been considered as authorized to pay a note on his presenting the note at the place of payment? made payable at its banking-house, without the There is no such rule, in any commercial country, express direction of the maker, or in the absence of of which we have any knowledge. It is well- any check or draft by him, appropriating his money settled doctrine, in the courts of England and of deposited there to such purpose. Nor is there any this country, and of this court, that the holder of obligation resting on the bank to pay, for the bank such paper is not under any obligation, even to pre- may have claims against the deposit superior to sent the note for payment when payable. The those of the holder of the note. “ Holding, as we maker, in an action against him on such note, may do, that neither the right nor opportunity'existed plead, in bar of damages and costs, a readiness to to the holder to receive this money at Conrad's pay at the time and place.

bank, the makers of the note are not released." “We do not understand that the fact of making An interesting question arose in Nat. Bank v. Smith, a note payable at a particular place amounts to an 66 N. Y. 271. The plaintiff, the bank, discounted agreement that the maker may make a deposit at and held a note drawn by a customer, payable at the the bank of the amount of the note, and thus dis- bank and on which the defendant was an indorser, charge his obligation, and that the money so de- The note was dishonored and duly protested, and posited is at the risk of the holder of the note. It notice given to the indorser. Afterward the maker is a mere designation of the place where the note made a deposit with plaintiff of the same amount as is to be paid, not of the person to whom the money the note but without any direction as to its applicais to be paid. By the terms of the note, the money was tion. The money so deposited was used in pay to be paid by the makers to the payee, not to Con- ment of a note of the same maker's falling due at rad, but at Conrad's banking-house. As put by ap- the bank two days after the deposit. The court pellee's counsel: “If the holder of the note was held that the bank was not bound to apply the present, at the time and place of payment of the money to the payment of the note held by it, and note, and the maker was there, and tendered the that the indorser was not discharged. amount, and the holder refused to accept it,” this Had the bank held funds of the maker sufficient would be no bar to a recovery by suit; and unless to pay the note when it fell due, it would probably the tender was kept good, by bringing the money have been bound, so far as the indorser was coninto court, it would not bar a recovery for damages cerned, to apply them to the note. Wright v. Austin, and costs. This position is sustained by the case 56 Barb. 13; Gary v. Cannon, 3 Ired. Eq. 64. of Butterfield v. Kinzie, 1 Scam. 445, where the Where funds in a banker's hands have been court cite Woolcott v. Van Santvoord, 17 Johns. 278; applied to the payment of notes and acceptances Caldwell v. Cassidy, 8 Cow. 271; Stanton v. Bishop, made payable at the bankers, though without any 3 Wend. 20; Bailey on Bills, 203; 4 Litt. 225; 11 further authority, that is a defense to an action by Wheat. 171; and Wallace v. McConnell, 13 Pet. 136, the depositor for dishonoring his checks. Keymer is referred to in note by reporter, to the same effect. v. Laurie, 18 L. J. Q. B. 218. To the same point is the case of New Hope and Dela- The certificate of a bank where a note is payable, ware Bridge Co. v. Perry et al., 11 Ill. 471, citing the that it is “good," is merely information that the

maker has funds in the bank. Irring Bank v. WethThe money on deposit with Conrad belonged to erald, 36 N. Y. 335. the maker of the note ; it was his money, and under As to the right of a bank to retain and apply a his control. If this be so, if the holders of this

deposit to a demand held by the bank against the note were under no obligation to present this note depositor, see Dawson v. Real Estate Bank, 5 Ark. at Conrad's counter, does the fact that it was pre- 283; Ford v. Thornton, 3 Leigh, 695; State Bank v. sented change the liability of the parties in any way? Armstrong, 3 Dev. 519; McDowell v. Bink, 1 Harr.

“ Wherein consisted the right and opportunity' 369; Whittington v. Bank, 5 Harr. & J. 489. of the holder to receive this money from Conrad, except by the actual payment of the money by the

SUPPRESSIO VERI, BOTH AS A GROUND OF maker, by himself or Conrad? Conrad had no right

ACTION AND DEFENSE, EITHER to pay it, nor could the money be taken to pay it,

IN LAW OR EQUITY. except by means of the verbal order, check or draft

Cum tacent, clamant.--CICERO. of the maker and depositor. No one taking such paper has ever supposed the bank, at which it was

DISCUSSION of this subject and of its comple. A

ment, the suggestio falsi, would cover a large pormade payable, was bound to pay the note on presen- tion of the wide and varied field of fraud. Each of tation, or that any obligation was imposed upon it these branches of that great topic presents a most in

same cases.

viting prospect to the student. Not only are they (2) In equity, to a party to a contract for its rescisinteresting because of the unfortunate frequency sion. Perkins v. McGavock, Cooke, 415. which marks the practical application of their rules, It forms a defense but still more on account of the admirable compari- (1) At law, to an action upon a contract. Brown v. son which they tend to afford between moral and Montgomery, 20 N. Y. 287. municipal law. The prevailing belief with regard to (2) In equity, to an action for the specific performthe origin of moral law is that it arises from an imate ance of a contract. Cathcart v. Robinson, 5 Pet. 263. iudefinable sense of right and wrong, planted in every We will discuss the subject generally as applicable to human breast and known as conscience. Municipal all these cases, and consider the poiuts of difference as law, on the other hand, is the offspring chiefly of it becomes necessary. utilitarian principles. It aims at the greatest good of The first rule may be thus briefly stated: (a) Whenthe greatest number. Still we are not to suppose that ever a party to a contract fails to state to the other party no other element enters into the laws of civilized na- or parties (1) that which he is under an obligation to tions. Moral law has stamped its features upon the communicate. (2) the contract is voidable at the election codes of continental Europe and the cognate system of such latter party or parties. This rule is adapted to of England and America. A salutary distinction is all systems of law. The characteristics of each would everywhere upheld between bona fides and mala fides. be shown in the definition of the term, “obligation." Indeed, the best way in which we can form an idea of It remains for us to discover what obligation a party the sources of the civil and common law is to regard is under at law and in equity. them as the results of a compromise between public (1) A party to a contract is under an obligation to economy and private virtue, in which the former ele- communicate to the other party or parties every (a) matrnent predominates. The foundation of all moral law riul fact (0) which is or should be within his knowledge, is truth. Suppressio veri and suggestio falsi are alike and is at the same time (c) not equally open to such latler condemned in the forum of conscience. On these party or parties. points, however, less stringent rules have been estab- (a) Material facts only should be disclosed under lished and recognized by legislators and judges of an- this rule, and every fact the statement of which would cient and modern times. The exaction of perfect probably have prevented the making of the contract truth is beyond the utilitarian scope of municipal law, is material. See 2 Pars. on Cout, 770, and Young v. but, even if it were desirable upon economical grounds Green, 4 Ga. 35. The question of materiality is althat falsehood should never be uttered nor implied by ways left to the jury (Lindenau v. Desborough, 8 B. & silence, yet it would be inexpedient to enforce such C. 586), but the court must often instruct it in the principles, for, were it undertaken, “either the law law. The general statement that all material facts would become confessedly and by a common under- must be divulged under the limitations in the rule restanding powerless and dead as to part of it; or so- quires qualification, or, to speak more correctly, the ciety would be constantly employed in visiting all its definition of materiality must be varied in one respect. members with punishment; or, if the law annulled A distinction is made between intriusic and collateral whatever violated its principles, a very great part of facts. In the case of concealment of a collateral fact human transactions would be rendered void." 2 Pars. moral fraud must be shown, but when the fact is inon Cont. 768. The jurists of the civil law recognize the trinsic, legal fraud is sufficient. Legal fraud exists difference between the rules of their codes and those of when there is no actual fraud but a conclusive legal or ethics. Dolus (“cunning" or “ shrewdness") is never equitable presumption of fraud. The contract of incountenanced in the forum of conscience--the for in- surance is uberrimæ fidei, and in it concealment of térieur of Pothier-but the civilians admit a certain facts, intrinsic or collateral, not known to the other amount of it under their practical rules, and this they party per se, defeats an action on the policy. Elton v. call dolus bonus, while the residue, known as dolus Larkins, 5 C. & P. 86: Bufe v. Turner, 6 Taunt. 338. malus, is condemned in all forums. Pothier des Oblig.,

The reason is that there is an implied contract that Pt. 1, art. 3, No. 30, p. 19. This dolus bonus has at all every statement should be true and full (Mocus v. times and in all countries been the debatable ground Hayworth, 10 M. & W. 157), and thus extrinsic facts of the law of fraud. Its extent shows precisely the become intrinsic. This applies as well to the statedifference between the law of God and that of man ments of the underwriter. Carter v. Boehm, 3 Burr, on these subjects, and, as the consideration of truth, 1909. Actual fraud in these cases is not necessary the foundation of the higher law, is peculiarly within (Fletcher v. Ins. Co., 18 Pick. 420), and the same rules the province of a discussion of fraud, it may be said govern cases of warranty. The contract of suretythat under this title we meet with the essential dis- ship is also peculiar. The surety should be informed tinction between the two systems. This distinction is of every private bargain between vendor and vendee more prominent in the suppressin veri than in the sug- which may vary his liability. Pidcock v. Bishop, 15 prostio falsi, as our laws are more apt to overlook con- B. & C. 609. ('icero discusses the question whether a cealment thau misrepresentation, while conscience is corn merchant who arrives at Rhodes during a famine as strict in the one case as in the other.

should disclose the fact that other vessels are about to The suppression of truth affords a cause of action as arrive with cargoes of grain. Diogenes thought that follows:

the fact might justly be concealed, but Cicero concurs (1) At law.

with Antipater in considering it to be in bad faith. (a) To a party to a contract for the recovery of ad- Pothier, however, agrees with Diogenes, though the vances of money or of goods (Masson v. Bovet, 1 Denio, civil law requires perfect good faith iu relation to the 69), or for damages (Nickley v. Thomas, 22 Barb. 652), subject-matter. Pothier de Vente, n. 234-5, 242; Dig. or, it is to be presumed, for both; and

Lib. 18, tit. 1143, $ 2. The common-law rule is some(6) To a person not a party to a contract who has what similar to the Roman one, although Judge Story sustained special damage. Levy v. Langridge, 4 M. & (2 Eq. 212) thinks that our law is more lenient in exW. 337.

acting full statements. He seems to carry the doctrine of caveat emptor to its fullest extent. The prin- rial facts, whether he knows them or not, if they are cipal difference between the two systems is shown by not open to the other contracting party. Warrauty is the fact that warranty was implied in all sales under implied in the sale of provisions for domestic purposes the Roman law Kerr on Fraud, etc., 100. With us (Van Bracklin v. Fonda, 12 Johns. 468), and of manuwarranty may always be demanded. French v. Vining, factured articles for particular uses. French v. Vin102 Mass. 135. Under the common law there is a ing, 102 Mass. 135. It is for the jury to determine marked distinction between suppressin veri as to the whether a representation involves warranty or not. subject-matter and concealment of mere extrinsic Anderson v. Barnett, 5 How. (Miss.) 165. It is not circumstances. The latter does not amouut to fraud necessary to reveal that which one has heard but does at law unless there be fraud in fact (Laidlaw v. Organ, not believe. Hamrick v. Hogg, 1 Dev. (N. C.) 350. He 2 Wheat. 195; Nichols v. Pinner, 18 N. Y. 295; see Ver- cannot be said to know it. non v. Keys, 12 East, 632); but whenever the former (c) The facts which a contracting party must reveal occurs, fraud in fact will be inferred. Foster v. Charles, are those only which are not equally open to the other 6 Bing. 403, and 7 id. 105. The other requisites of the party. This priuciple is clearly adjudicated. Kinlzrule which we have laid down (1) must of course enter ing v. McElrath, 5 Penn. St. 467 ; Sterens v. Fuller, 8 into the case. It is often difficult to determine N. H. 464; Mellish v. Motleux, Peake's N. P. C., overwhether a fact is intrinsic or collateral. Insolvency ruled on another point only, 3 Campb. 154. It depends of a vendee may be considered to be collateral so far upon trust, and this trust varies with the relation of as concealment is concerned (Cross v. Peters, 1 Me. the parties to each other. The greatest good faith is 376; Conyers v. Ennis, 2 Mason, 236; Powell v. Bradlee, required when this relation is fiduciary (Dent v. Ben9 G. & J. 274; Smith v. Smith, 21 Penn. St. 367), and nelt, 7 Sim. 539; Carter v. Palmer, 8 C. & F. 657), and actual fraud must be proved, such as is evidenced by persons who from feebleness of mind are incapable of the intention never to pay. Bidault v. Wales, 20 Mo. taking care of themselves will be relieved from op546; see Buckley v. Artcher, 21 Barb. 585; Ash v. Put- pressive bargains. Blachford v. Christian, 1 Knapp, nam, 1 Hill, 302. Mr. Chitty (2 Cont. 1044) says that 77. Those who contract with them are constituted legal fraud will not in general invalidate a contract. trustees, as it were, by the very fact. The law will A classification, however, based upon our definition not, however, help the negligent. Vigilantibis et non of legal fraud, would have shown that the exceptions dormientibus succurrunt jura (Shrewsbury v. Blount, 2 which are recognized by this statement are cases of Scott (N. R.), 593–4), and the doctrine of caveat emptor fraud as to the subject-matter, and this view appears remains unshaken. Horsfall v. Thomas, 1 H. & C. 90; to be upheld by the cases which he cites. Matters of N. B. Co. v. Conybeare, 9 H. L. C. 711; Keates v. Earl opinion are not in general material (Moonry v. Miller, of Cadogan, 10 C. B. 591, Uuder this division it is to 102 Mass. 220), but such is not the case when there is a be noted that in the case of The Centrul Railway, etc., known trust or confidence. Schueffer v. Sleade, 7 v. Kisch, L. R., 2 H. L. 120, Chelmsford, L. Ch., makes Blackf. 183.

the somewhat remarkable statement that when once (b) The facts which a party to a contract is bound to it is proven that there has been any “willful concealcommunicate under the rule are those only which ment by which a person has been induced to enter either are or should be within his knowledge. There into a contract, it is no answer to his claim to be recan be no doubt with regard to the fact that a man is lieved from it to tell him that he might have known under no obligation to communicate that which he the truth by proper inquiry.” Even warranty does dves not know, and which he is not bound to know, not cover an open defect (Dyer v. Hargrave, 10 Ves. and it is also true that it is his duty to disclose all 506; Schuyler v. Russ, 2 Cai. 202), and a person purthat he knows under the restrictions of the rule, (1) chasing land in which he knows that there is a mine (Railton v. Matheus, 10 C. & F. 934), but there are cases is under no obligation to disclose the fact to the owner. in which it is held that a party to a contract is not Turner v. Harvey, 1 Jacobs, 178; Fox v. Muckreth, 2 obliged to reveal those circumstances which are not Bro. Ch. 420; Harris v. Tyson, 24 Penn. St. 347. The within his knowledge, although his ignorance be the vendor's opportunities to learn the character of his result of his negligence. This was held to be law in property are presumably better than the vendee's, and Ormrod v. Huth, 14 M. & W.651, and in Stone y. Denny, he cannot be relieved from the effect of his ignorance. 4 Metc. 151, but the law as stated in Leather v. Simp- Upon the same principle conclusions of law need never son, L. R., 11 Eq. 406, is contrary to the opinions in be stated. Lewis v. jones, 4 B. & C. 506. Every man these cases. It sustains our rule, which is certainly is bound to kuow them. The contract of marriage is more equitable. It should not be a defense that a per- governed by its own rules. The concealment which son does not know that which he ought to know. The will render it voidable must go to the substance of the party who relies upon a statement or the absence of

Scott v. Shufeldt, 5 Paige, 43. No fraud as to statement has a right to trust in the knowledge as well property will affect this contract. We have thus conas in the good faith of the other party. In such cases sidered the obligation to reveal facts uuder which a ignorance is culpable. Munroe v. Pritchett, 16 Ala. party to a contract is placed. It is a duty of univer785; Snyder v. Findley, Coxe (N. J.), 48, 1791. The sal force, and it has even been held that it cannot be question is an open one, and a standard author is op- waived by any stipulation. George V. Johnson, 6 posed to the latter authorities. 2 Pars. on Cont. 774. Humph. 36. Knowledge of facts is not required to be proved in (2) The only remaining poiut which confronts us uncases of warranty, and this is consequently true of in- der the general rule (A) is the voidability of the consurance (Anderson v. Thornton, 8 Exch. 425), but when tract, wbich has been obtained by concealment. We an action is brought it must be upon the warranty, have found numerous instances in wbich contracts and its gravamen should not be fraud. Howell v. Bid- were vitiated by concealment, but no advantage can dlecomb, 62 Barb. 135. In cases of this kind the war- be taken of this fact by the party at fault. Ex dolo rantor assumes the obligation of disclosing all mate- malo non oritur actio (Holman v. Johnson, Cowp. 343;


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