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.

§ 111. 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?

§ 112. Definition.-Fraud or deceit is any trick, collusion, contrivance, false representation or underhand 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.

§ 113. 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 omit 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.

§ 114. 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 as to what will constitute equal opportunities and what degree of diligence will be required are not altogether harmonious. 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.

§ 115. Elements of fraud.-In order to make out a cause of action for fraud or deceit, the following

elements must concur: (1) That the defendant made a

(2) That the

false representation of a material fact.
defendant had knowledge of its falsity.
defendant intended it to be acted upon by plaintiff.

(3) That the

(4)

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

These elements will be considered in detail.

§ 116. 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.

§ 117. 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 indefinite import. They must carry a sufficiently definite meaning, so that a man of average intelligence would act on them.

Indefinite and vague statements ought to put an ordinarily prudent person on his guard and upon inquiry; and if put on inquiry he can have no cause of action, for if he inquired he must have ascertained, and if he did not inquire his negligence defeats him.

§ 118. Matter of law. A misrepresentation of a matter of law is usually not in law a fraud, for it is supposed that all men's opportunities for knowledge in this respect are equal.

If, however, it is clear that the opportunities are not equal, there may be a fraud, as, for example, if the statement be made by an attorney with intent to deceive, or perhaps if made by any one professing familiarity with the law to one who is clearly ignorant. Persons are not supposed to have equal opportunity to know foreign laws, and a false statement in regard thereto may be a fraud.

§ 119. Matter of opinion.-As a rule, mere expressions of opinion, even though false, are not to be regarded as representations of fact, and will not amount to fraud. The question frequently arises upon statements as to value; they will usually be held to be mere expressions of opinion, for each party has an equal right and ought to form his own opinion. If, however, one has peculiar means of knowledge, as an expert, his false statement of value may be a fraud. And if property is at a distance and a purchaser is induced to refrain from making examination, but to rely on the seller's false statement as to value, it may be a fraud. The decisions are conflicting upon this subject, but it is generally agreed that false statements of any facts that enter into the question of value will be a fraud, as for example, misrepresentation as to cost or what the price was on previous sale.