Gambar halaman

to be protected as agent, to have given notice of its agency." See, also, Schnell v. Stephens, 50 Mo. 379, which was an action against auctioneers, upon an 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 own goods, and they must be deemed to have been vendors and responsible as such for title, unless they disclosed at the time the name of their principal. See, also, Snyder v. Hord, 8 Tex. 101; Canal Bk. v. Bk. of Albany, 1 Hill, 287; Mills v. Hunt, 17 Wend. 333, and 20 id. 431.


vincunt legem-and the agreement into which the defendants entered was a waiver of the right to take advantage of the statute."

In Smith v. Read, 6 Daly, 33, the New York Court of Common Pleas decides that a boarding-house keeper is liable for the negligence of his servants in the care of a boarder's property. In this case the housekeeper, employed by a boarding-house keeper, negligently allowed a stranger to go alone into a

boarder's room where he stole certain of the boarder's property. The court held that the boarding

In 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 April last, the action was against a well-known commercial agency which undertakes for a sideration to procure accurate information for its customers in regard to the standing, responsibility, means and credit, of men in business in the United States and Canada. Plaintiff, who was a druggist and a customer of this agency, inquired at its office in Mobile with regard to the credit and character of one Getz. He was informed that both were good, and was also shown a book in which Getz was described as possessing a considerable amount of real and personal property, and as one who might be trusted to any reasonable amount. Plaintiff had been for some time associated in business transactions with Getz, and was in the habit of raising money with his aid and extending a like help to him. Plaintiff claimed that, in consequence of the information received, he was led to put his name to various accommodation notes which were also signed or indorsed by Getz, and discounted at the bank, and the proceeds divided between Getz and plaintiff. Getz failed not long afterward without paying any part of these notes. The plaintiff, when he made his contract with the agency, signed a stipulation that the information derived by him therefrom would be used exclusively for the "legitimate business of his establishment," and it was claimed as a defense that the floating of commercial paper was not a part of the legitimate business of plaintiff, and defendants were not liable for any loss that might happen therefrom. A further defense was that the representation as to Getz's responsibility not being in writing, signed by defendants, was void as an agreement under the statute and furnished no ground of action. The court said that the first ground of defense was tenable, but that the second was not, saying as to the latter that "it is an established rule that remedial statutes shall be read with a due regard for the object which the Legislature had in view, and this in the case of the act in question was not to relax the bonds of contract, but to guard against loose and unfounded charges of fraud-modus et conventio | Morrill, 42 Barb. 623.

The point in the case is much discussed in Dausey v. Richardson, 3 El. & Bl. 144. In that case the question was whether the defendant, a boarding-house keeper, was liable for the loss of a dressing case belonging to a boarder which was placed in the hall just previous to the departure of the guest, and had been stolen by a thief who entered by the hall door that had been negligently left open by the boardinghouse keeper's servants. The court were divided, and no authoritative decision was made. In Holder V. Soulby, 8 C. B. (N. S.) 35, it was held that the keeper of a lodging-house is under no obligation to take care of his lodgers' goods, and consequently is not liable for their loss, but it is intimated in the opinion of Erle, C. J., that if the loss results from gross negligence on the part of the lodging-house keeper, he will be liable. The liability of an innkeeper is much greater, being that of an insurer, and he is bound to make good any loss, with some rare exceptions. Hulett v. Swift, 33 N. Y. 571. The court, in the principal case, says that every objection which can be urged against charging a boarding-house keeper for the loss of his guest's goods will, upon reflection, be found to apply with equal force to the innkeeper. And this especially since the statute of New York gives him a lien upon the goods of his guest by which he can enforce summary payment of his reasonable charges. In Ingalsbee v. Wood, 36 Barb. 452, the court, speaking of the innkeeper's lien, says: "The lien and liability must stand or fall together." If the boarding-house keeper possesses the innkeeper's lien he must take the innkeeper's liability, especially as he has the advantage over the innkeeper of being able to refuse, at his option, any applicant for board. The rule imposing an extraordinary liability upon an innkeeper had its origin in a peculiar state of society which does not exist at the present time, but public policy forbids a relaxation in its vigor. Hulett v. Swift, supra. In Buddenberg v. Benner, 1 Hilt. 84, the doctrine of the principal case is asserted, although it was assumed in that case that the defendant was an innkeeper. See, also, Jones v.



Tis the popular conception that a bank is bound to pay a note made by one of its customers and payable at its counter, provided it have sufficient funds of the drawer on deposit; but this, like a great many other popular notions of law, if in any respect true, is subject to numerous limitations and exceptions.

It is well settled that the deposit of money in a bank generally creates simply the relation of debtor and creditor between the bank and the depositor. Marsh v. Oneida Central Bank, 34 Barb. 298; Ketchum v. Stevens, 6 Duer, 463; affirmed, 19 N. Y. 499; Beckwith v. Union Bank, 5 Seld. 211; Commercial Bank v. Hughes, 11 Paige, 94; Dykers v. Leather Manuf. Bank, id. 612; Bank of Republic v. Millard, 10 Wall. 152; First Nat. Bank v. Whitman, 94 U. S. 343; Etna Nat. Bank v. Fourth Nat. Bank, 46 N. Y. 823; S. C., 7 Am. Rep. 314; Carr v. Nat. Security Bank, 9 Am. Rep. 6; Case v. Henderson, 8id. 590; Re Bank of Madison, 5 Biss. 515. And it has been, therefore, frequently held that there is no privity between the holder of a check and the bank on which it is drawn, and that, therefore, such holder has no right of action against the bank for refusing to pay the check on presentation. Etna Nat. Bank V. Fourth Nat. Bank, supra; Carr v. Nat. Security Bank, supra; Case v. Henderson, supra, and the other cases above cited. It is held otherwise in Illinois and Kentucky, but the unbroken current of authority elsewhere is to the effect above stated. See Union Nat. Bank v. Ocean County Bank, 22 Am. Rep. 185, and note.

If a bank is not bound to pay the checks of its customers it is equally not bound to pay their notes drawn payable at the bank. In Etna Nat. Bank v. Fourth Nat. Bank, Allen, J., delivering the judgment of the court, said: "An acceptance or promissory note thus payable [that is payable at the bank] is, if the party is in funds, that is, has the amount to his credit, equivalent to a check; and it is in effect an order or draft on the banker, in favor of the holder, for the amount of the note or acceptance." That case shows very conclusively that a bank is under no legal obligation to a stranger holding a note payable at its counter. The facts were these: The Florence Mills having a balance of $694 to its credit with the defendant bank, sent to it on April 2d, by mail, a check on another bank for $4,895, with a letter containing the direction: "Please credit our account and charge us our note of $5,000 due the 4th inst." The check was received and credited on the 3d, and on the same day the defendant paid a past due note of $5,000 of the Florence Mills, payable at defendant's bank and charged it to the account. On the 4th the plaintiff presented the note referred to in the letter, and payment being refused, brought suit. The court held that the plaintiff

[ocr errors]

could not recover. The learned judge remarked arguendo that "this payment was valid as against the customer of the defendant, the maker of the note," but there may be room for doubt about that. There was a specific direction accompanying the deposit as to its application, and it is generally held that where moneys are deposited for a specific purpose with notice to the bank, or where it is accompanied by specific directions as to its application, the bank is bound to follow such directions, and cannot even apply the deposit to a debt due it. Bank of the United States v. Macalester, 9 Penn. St. 475; Smuller v. Union Canal Co., 37 id. 68; Farley v. Turner, 26 L. J. Ch. 710. Thus, in Wilson v. Dawson, 52 Ind. 513, the principal on a promissory note due a bank, after maturity of the note, deposited and checked out more money than was sufficient to pay the note, but under a special agreement with the bank when the deposits were made that they were to be used to pay checks, and it was held that the moneys could not have been applied on the note, and that a surety thereon was not discharged. So if a depositor notify a bank not to pay a note drawn payable at its counter, it is bound to comply. Egerton v. Fulton Nat. Bank, 43 How. Pr. 216.

But the depositor only can sue a bank for failing to follow his directions as to the application of a deposit; no right of action exists in the holder of a note. And it may be doubted whether a bank would be liable to a depositor for failing to pay a note or check in the absence of a specific agreement so to do. In Thatcher v. Bank, 5 Sandf. 121, it was held that such an agreement would be implied between a bank and its customers, but must be proved as between the bank and those not regularly dealing with it.

It may be stated as a general rule that a bank has a right, in the absence of instructions to the contrary, to apply moneys on deposit, to the payment of notes and checks drawn upon it, or payable by it. Mandeville v. Union Bank, 9 Cranch, 9; Griffin v. Rice, 1 Hilt. 184. But the Supreme Court of Illinois seems to hold a different view.

In Wood v. Merchants' Saving Co., 41 Ill. 267, the position seems to have been taken that a bank has no right to pay a note payable at its counter out of funds on general deposit without some special authority or direction so to do. The action was on a note payable at the banking-house of one Conrad, and the defense was that the maker had money on deposit with Conrad when the note was due; that the holder without procuring such money, as he had "the right and opportunity" to do, had the note marked "good" and departed, and that afterward the banker failed. The court said: "Had the holder this right, and had Conrad any authority whatever to pay the note, out of the funds on deposit in his bank to the credit of the makers? The custom sought to be established among bankers has nothing,

in our judgment, to do with the question. What is the effect of making a note payable at a particular place? Was it ever before heard, that the effect was to transfer, ipso facto, the money at the place belonging to the makers, absolutely to the holder, on his presenting the note at the place of payment? There is no such rule, in any commercial country, of which we have any knowledge. It is wellsettled doctrine, in the courts of England and of this country, and of this court, that the holder of such paper is not under any obligation, even to present the note for payment when payable. The maker, in an action against him on such note, may plead, in bar of damages and costs, a readiness to pay at the time and place.

"We do not understand that the fact of making a note payable at a particular place amounts to an agreement that the maker may make a deposit at the bank of the amount of the note, and thus discharge his obligation, and that the money so deposited is at the risk of the holder of the note. It is a mere designation of the place where the note is to be paid, not of the person to whom the money is to be paid. By the terms of the note, the money was to be paid by the makers to the payee, not to Conrad, but at Conrad's banking-house. As put by appellee's counsel: "If the holder of the note was present, at the time and place of payment of the note, and the maker was there, and tendered the amount, and the holder refused to accept it," this would be no bar to a recovery by suit; and unless the tender was kept good, by bringing the money into court, it would not bar a recovery for damages and costs. This position is sustained by the case of Butterfield v. Kinzie, 1 Scam. 445, where the court cite Woolcott v. Van Santvoord, 17 Johns. 278; Caldwell v. Cassidy, 8 Cow. 271; Stanton v. Bishop, 3 Wend. 20; Bailey on Bills, 203; 4 Litt. 225; 11 Wheat. 171; and Wallace v. Mc Connell, 13 Pet. 136, is referred to in note by reporter, to the same effect. To the same point is the case of New Hope and Delaware Bridge Co. v. Perry et al., 11 Ill. 471, citing the

same cases.

so to do. It is not according to the usage of banks to pay out money except upon checks or drafts drawn by its creditors having funds in the bank. No case can be found, where, in such case, a bank has been considered as authorized to pay a note made payable at its banking-house, without the express direction of the maker, or in the absence of any check or draft by him, appropriating his money deposited there to such purpose. Nor is there any obligation resting on the bank to pay, for the bank may have claims against the deposit superior to those of the holder of the note. "Holding, as we do, that neither the right nor opportunity' existed to the holder to receive this money at Conrad's bank, the makers of the note are not released."

An interesting question arose in Nat. Bank v. Smith, 66 N. Y. 271. The plaintiff, the bank, discounted and held a note drawn by a customer, payable at the bank and on which the defendant was an indorser, The note was dishonored and duly protested, and notice given to the indorser. Afterward the maker made a deposit with plaintiff of the same amount as the note but without any direction as to its application. The money so deposited was used in pay ment of a note of the same maker's falling due at the bank two days after the deposit. The court held that the bank was not bound to apply the money to the payment of the note held by it, and that the indorser was not discharged.

Had the bank held funds of the maker sufficient to pay the note when it fell due, it would probably have been bound, so far as the indorser was concerned, to apply them to the note. Wright v. Austin, 56 Barb. 13; Gary v. Cannon, 3 Ired. Eq. 64.

Where funds in a banker's hands have been applied to the payment of notes and acceptances made payable at the bankers, though without any further authority, that is a defense to an action by the depositor for dishonoring his checks. Keymer v. Laurie, 18 L. J. Q. B. 218.

The certificate of a bank where a note is payable, that it is "good," is merely information that the maker has funds in the bank. Irving Bank v. Weth

As to the right of a bank to retain and apply a deposit to a demand held by the bank against the depositor, see Dawson v. Real Estate Bank, 5 Ark. 283; Ford v. Thornton, 3 Leigh, 695; State Bank v. Armstrong, 3 Dev. 519; McDowell v. Bink, 1 Harr. 369; Whittington v. Bank, 5 Harr. & J. 489.

"The money on deposit with Conrad belonged to|erald, 36 N. Y. 335. the maker of the note; it was his money, and under his control. If this be so, if the holders of this note were under no obligation to present this note at Conrad's counter, does the fact that it was presented change the liability of the parties in any way? "Wherein consisted the 'right and opportunity' of the holder to receive this money from Conrad, except by the actual payment of the money by the maker, by himself or Conrad? Conrad had no right to pay it, nor could the money be taken to pay it, except by means of the verbal order, check or draft of the maker and depositor. No one taking such paper has ever supposed the bank, at which it was made payable, was bound to pay the note on presentation, or that any obligation was imposed upon it



Cum tacent, clamant.-CICERO.

DISCUSSION of this subject and of its comple ment, the suggestio falsi, would cover a large portion of the wide and varied field of fraud. Each of these branches of that great topic presents a most in

viting prospect to the student. Not only are they interesting because of the unfortunate frequency which marks the practical application of their rules, but still more on account of the admirable comparison which they tend to afford between moral and municipal law. The prevailing belief with regard to the origin of moral law is that it arises from an innate indefinable sense of right and wrong, planted in every human breast and known as conscience. Municipal law, on the other hand, is the offspring chiefly of utilitarian principles. It aims at the greatest good of the greatest number. Still we are not to suppose that no other element enters into the laws of civilized nations. Moral law has stamped its features upon the codes of continental Europe and the cognate system of England and America. A salutary distinction is everywhere upheld between bona fides and mala fides. Indeed, the best way in which we can form an idea of the sources of the civil and common law is to regard them as the results of a compromise between public economy and private virtue, in which the former element predominates. The foundation of all moral law is truth. Suppressio veri and suggestio falsi are alike condemned in the forum of conscience. On these points, however, less stringent rules have been established and recognized by legislators and judges of ancient and modern times. The exaction of perfect truth is beyond the utilitarian scope of municipal law. but, even if it were desirable upon economical grounds that falsehood should never be uttered nor implied by silence, yet it would be inexpedient to enforce such principles, for, were it undertaken, "either the law would become confessedly and by a common understanding powerless and dead as to part of it; or society would be constantly employed in visiting all its members with punishment; or, if the law annulled whatever violated its principles, a very great part of human transactions would be rendered void." 2 Pars. on Cont. 768. The jurists of the civil law recognize the difference between the rules of their codes and those of ethics. Dolus (" cunning" or "shrewdness") is never countenanced in the forum of conscience-the for intérieur of Pothier-but the civilians admit a certain amount of it under their practical rules, and this they call dolus bonus, while the residue, known as dolus malus, is condemned in all forums. Pothier des Oblig., Pt. 1, art. 3, No. 30, p. 19. This dolus bonus has at all times and in all countries been the debatable ground of the law of fraud. Its extent shows precisely the difference between the law of God and that of man on these subjects, and, as the consideration of truth, the foundation of the higher law, is peculiarly within the province of a discussion of fraud, it may be said that under this title we meet with the essential distinction between the two systems. This distinction is more prominent in the suppressio veri than in the suggestio falsi, as our laws are more apt to overlook concealment thau misrepresentation, while conscience is as strict in the one case as in the other.

The suppression of truth affords a cause of action as follows:

(1) At law.

(a) To a party to a contract for the recovery of advances of money or of goods (Masson v. Bovet, 1 Denio, 69), or for damages (Nickley v. Thomas, 22 Barb. 652), or, it is to be presumed, for both; and

(b) To a person not a party to a contract who has sustained special damage. Levy v. Langridge, 4 M. & W. 337.

(2) In equity, to a party to a contract for its rescission. Perkins v. McGavock, Cooke, 415.

It forms a defense

(1) At law, to an action upon a contract. Brown v. Montgomery, 20 N. Y. 287.

(2) In equity, to an action for the specific performance of a contract. Cathcart v. Robinson, 5 Pet. 263. We will discuss the subject generally as applicable to all these cases, and consider the points of difference as it becomes necessary.

The first rule may be thus briefly stated: (a) Whenever a party to a contract fails to state to the other party or parties (1) that which he is under an obligation to communicate. (2) the contract is voidable at the election of such latter party or parties. This rule is adapted to all systems of law. The characteristics of each would be shown in the definition of the term, obligation." It remains for us to discover what obligation a party is under at law and in equity.

(1) A party to a contract is under an obligation to communicate to the other party or parties every (a) material fact (b) which is or should be within his knowledge, and is at the same time (c) not equally open to such latter party or parties.

(a) Material facts only should be disclosed under this rule, and every fact the statement of which would probably have prevented the making of the contract is material. See 2 Pars. on Cont. 770, and Young v. Green, 4 Ga. 95. The question of materiality is always left to the jury (Lindenau v. Desborough, 8 B. & C. 586), but the court must often instruct it in the law. The general statement that all material facts must be divulged under the limitations in the rule requires qualification, or, to speak more correctly, the definition of materiality must be varied in one respect. A distinction is made between intrinsic and collateral facts. In the case of concealment of a collateral fact moral fraud must be shown, but when the fact is intrinsic, legal fraud is sufficient. Legal fraud exists when there is no actual fraud but a conclusive legal or equitable presumption of fraud. The contract of insurance is uberrimæ fidei, and in it concealment of facts, intrinsic or collateral, not known to the other party per se, defeats an action on the policy. Elton v. Larkins, 5 C. & P. 86: Bufe v. Turner, 6 Taunt. 338. The reason is that there is an implied contract that every statement should be true and full (Mocus v. Hayworth, 10 M. & W. 157), and thus extrinsic facts become intrinsic. This applies as well to the statements of the underwriter. Carter v. Boehm, 3 Burr, 1909. Actual fraud in these cases is not necessary (Fletcher v. Ins. Co., 18 Pick. 420), and the same rules govern cases of warranty. The contract of suretyship is also peculiar. The surety should be informed of every private bargain between vendor and vendee which may vary his liability. Pidcock v. Bishop, 13 B. & C. 609. Cicero discusses the question whether a corn merchant who arrives at Rhodes during a famine should disclose the fact that other vessels are about to arrive with cargoes of grain. Diogenes thought that the fact might justly be concealed, but Cicero concurs with Antipater in considering it to be in bad faith. Pothier, however, agrees with Diogenes, though the civil law requires perfect good faith in relation to the subject-matter. Pothier de Vente, n. 234-5, 242; Dig. Lib. 18, tit. 1143, § 2. The common-law rule is somewhat similar to the Roman one, although Judge Story (2 Eq. 212) thinks that our law is more lenient in exacting full statements. He seems to carry the doc

trine of caveat emptor to its fullest extent. The priucipal difference between the two systems is shown by the fact that warranty was implied in all sales under the Roman law. Kerr on Fraud, etc., 100. With us warranty may always be demanded. French v. Vining, 102 Mass. 135. Under the common law there is a marked distinction between suppressio veri as to the subject-matter and concealment of mere extrinsic circumstances. The latter does not amount to fraud at law unless there be fraud in fact (Laidlaw v. Organ, 2 Wheat. 195; Nichols v. Pinner, 18 N. Y. 295; see Vernon v. Keys, 12 East, 632); but whenever the former occurs, fraud in fact will be inferred. Foster v. Charles, 6 Bing. 403, and 7 id. 105. The other requisites of the rule which we have laid down (1) must of course enter into the case. It is often difficult to determine whether a fact is intrinsic or collateral. Insolvency of a vendee may be considered to be collateral so far as concealment is concerned (Cross v. Peters, 1 Me. 376; Conyers v. Ennis, 2 Mason, 236; Powell v. Bradlee, 9 G. & J. 274; Smith v. Smith, 21 Penn. St. 367), and actual fraud must be proved, such as is evidenced by the intention never to pay. Bidault v. Wales, 20 Mo. 546; see Buckley v. Artcher, 21 Barb. 585; Ash v. Putnam, 1 Hill, 302. Mr. Chitty (2 Cont. 1044) says that legal fraud will not in general invalidate a contract. A classification, however, based upon our definition of legal fraud, would have shown that the exceptions which are recognized by this statement are cases of fraud as to the subject-matter, and this view appears to be upheld by the cases which he cites. Matters of opinion are not in general material (Mooney v. Miller, 102 Mass. 220), but such is not the case when there is a known trust or confidence. Schaeffer v. Sleade, 7 Blackf. 183.

(b) The facts which a party to a contract is bound to communicate under the rule are those only which either are or should be within his knowledge. There can be no doubt with regard to the fact that a man is under no obligation to communicate that which he does not know, and which he is not bound to know, and it is also true that it is his duty to disclose all that he knows under the restrictions of the rule, (1) (Railton v. Mathews, 10 C. & F. 934), but there are cases in which it is held that a party to a contract is not obliged to reveal those circumstances which are not within his knowledge, although his ignorance be the result of his negligence. This was held to be law in Ormrod v. Huth, 14 M. & W. 651, and in Stone v. Denny, 4 Metc. 151, but the law as stated in Leather v. Simpson, L. R., 11 Eq. 406, is contrary to the opinions in these cases. It sustains our rule, which is certainly more equitable. It should not be a defense that a person does not know that which he ought to know. The party who relies upon a statement or the absence of statement has a right to trust in the knowledge as well as in the good faith of the other party. In such cases ignorance is culpable. Munroe v. Pritchett, 16 Ala. 785; Snyder v. Findley, Coxe (N. J.), 48, 1791. The question is an open one, and a standard author is opposed to the latter authorities. 2 Pars. on Cont. 774. Knowledge of facts is not required to be proved in cases of warranty, and this is consequently true of insurance (Anderson v. Thornton, 8 Exch. 425), but when an action is brought it must be upon the warranty, and its gravamen should not be fraud. Howell v. Biddlecomb, 62 Barb. 135. In cases of this kind the warrantor assumes the obligation of disclosing all mate

rial facts, whether he knows them or not, if they are not open to the other contracting party. Warranty is implied in the sale of provisions for domestic purposes (Van Bracklin v. Fonda, 12 Johns. 468), and of manufactured articles for particular uses. French v. Vining, 102 Mass. 135. It is for the jury to determine whether a representation involves warranty or not. Anderson v. Barnett, 5 How. (Miss.) 165. It is not necessary to reveal that which one has heard but does not believe. Hamrick v. Hogg, 1 Dev. (N. C.) 350. He caunot be said to know it.

(c) The facts which a contracting party must reveal are those only which are not equally open to the other party. This principle is clearly adjudicated. Kintzing v. McElrath, 5 Penn. St. 467; Stevens v. Fuller, 8 N. H. 464; Mellish v. Motteux, Peake's N. P. C., overruled on another point only, 3 Campb. 154. It depends upon trust, and this trust varies with the relation of the parties to each other. The greatest good faith is required when this relation is fiduciary (Dent v. Bennett, 7 Sim. 539; Carter v. Palmer, 8 C. & F. 657), and persons who from feebleness of mind are incapable of taking care of themselves will be relieved from oppressive bargains. Blachford v. Christian, 1 Knapp, 77. Those who contract with them are constituted trustees, as it were, by the very fact. The law will not, however, help the negligent. Vigilantibus et non dormientibus succurrunt jura (Shrewsbury v. Blount, 2 Scott [N. R.], 593-4), and the doctrine of caveat emptor remains unshaken. Horsfall v. Thomas, 1 H. & C. 90; N. B. Co. v. Conybeare, 9 H. L. C. 711; Keates v. Earl of Cadogan, 10 C. B. 591. Under this division it is to be noted that in the case of The Central Railway, etc., v. Kisch, L. R., 2 H. L. 120, Chelmsford, L. Ch., makes the somewhat remarkable statement that when once it is proven that there has been any "willful concealment by which a person has been induced to enter into a contract, it is no answer to his claim to be relieved from it to tell him that he might have known the truth by proper inquiry." Even warranty does not cover an open defect (Dyer v. Hargrave, 10 Ves. 506; Schuyler v. Russ, 2 Cai. 202), and a person purchasing land in which he knows that there is a mine is under no obligation to disclose the fact to the owner. Turner v. Harvey, 1 Jacobs, 178; Fox v. Mackreth, 2 Bro. Ch. 420; Harris v. Tyson, 24 Penn. St. 347. The vendor's opportunities to learn the character of his property are presumably better than the vendee's, and he cannot be relieved from the effect of his ignorance. Upon the same principle conclusions of law need never be stated. Lewis v. Jones, 4 B. & C. 506. Every man is bound to know them. The contract of marriage is governed by its own rules. The concealment which will render it voidable must go to the substance of the Scott v. Shufeldt, 5 Paige, 43. No fraud as to property will affect this contract. We have thus considered the obligation to reveal facts under which a party to a contract is placed. It is a duty of universal force, and it has even been held that it cannot be waived by any stipulation. George v. Johnson, 6 Humph. 36.


(2) The only remaining point which confronts us under the general rule (A) is the voidability of the contract, which has been obtained by concealment. We have found numerous instances in which contracts were vitiated by concealment, but no advantage can be taken of this fact by the party at fault. Ex dolo malo non oritur actio (Holman v. Johnson, Cowp. 343;

« SebelumnyaLanjutkan »