Deceit

— Any device or false representation by which one man misleads another to his injury. ^ A fraudulent niisi-epresentation, by which one man deceives another, to the injury of the latter.5 Deceit practiced to induce one to enter into a contract may be active, as where falsehood and misrepresentation are actually used by one party to deceive the other;

— or passive, as where a vendor knows that a purchaser is under a delusion influencing his judgment in favor of purchasing, and yet suffers him to complete his purchase.^ Other examples are: where one sells what is not his own, or sells unwholesome provisions; ' or falsely represents his credit to a mercantile agency."

While ever)' deceit comprehends a lie, it is more than a lie — on account of the view with which it is practiced, of its being coupled with some dealing, and of the injury it is calculated to occasion, and does occasion. But a mere lie thrown out at random without intention to hurt anybody, and which a plaintiff 'Pittsburgh, &c.

K. Co. v. aarke, 29 Pa. 151 (1857); Law V. People, 87 HI. 393 (1877). ' Mattingly v. Wulke, 2 Bradw. 178 (1878), cases. ssackett v. New Albany, 88 Ind. 479 (1883); Valparaiso V. Gardner, 97 id. 6-7 (1884). * De-ce'-dent. s Farwell v. Metcalf, 61 111.

374 (1871), Thornton, J. » [Smith, Contr. 808. was foolish enough to believe, will not support an action.' Formerly the remedy was by a " writ of deceit; " now, unless otherwise provided by statute, it is by an action of trespass on the case. Besides the special action on the case there is also an " action of deceit," which gives damages in particular cases of fraud, principally where one man does anything in the name of another, by which he is deceived or Injured. But an action on the "case" for damages, in the nature of a writ of deceit, is the usual remedy. '^ To a recovery it is essential that the defendant; (1) actually made a false representation of a material fact, by words or acts unambiguous in import; = (2) knew the falsity, or did not know the truth, of the representation <— the word "deceit" of itself imports this;* (3) intended that the plaintiff should act upon the representation — tbe essence of the injury; '» ' and th&t the plaintiff: (1) acted upon the representation; (8) to his actual damage; ' (3) because he was ignorant of the falsity of the representation, and believed it to be true.^ The defendant or his agent must have been guilty of some moral wrong; legal fraud alone will not support the action." The plaintiff must prove representations of material facts which are false, and which induced him to act; and either that the defendant knew the representations to be false, or that, the facts being susceptible of knowledge, he represented, as of his own knowledge, that they were true, when he had no such knowledge." It is not only necessary to establish the tellin'g of an untruth, knowing it to be such, with intent to induce the person to whom told to act upon it, but also that he altered his condition in consequence, and suffered damage thereby. If it appears afi Srmatively that although he altered his condition, after hearing the imtruth, he was not induced to do it as a consequence, but did it independently, the action fails.'" In a recent case the plaintiff averred that he had been induced to purchase the lease, good-will, and fixtures of a livery-stable, upon false, fraudulent, and deceitful representations by the defendant that he owned the lease, was in peaceable possession, etc. ' Pasley v. Freeman, 3 T. R. 66 (1789), Buller, J.; ib. 63, Ashhurst, J. ' 3 Bl. Com. 165. s Halls V. Thompson, 1 Smedes & Mar. 481 (1843), «Gibbsu. Odell, 8 Coldw. 133 (1865), cases; Stone v. Covell, 29 Mich. 363 (1874). » Farwell v. Metcalf, 61 111. 374-75 (1871), cases. • Lord ti. Goddard, 13 How. 810 (1861), cases; Farwell V. Metcalf, 61 Dl. 375 (1871), cases; Bigelow, Torts, 31. ' Cases ^upra and infra. »Erie City Iron Works v. Barber, 106 Pa. 125, 138, 140 (1884), cases. » Cole V. Cassidy, 138 Mass. 439 (1886), Morton, C. J.; 117 id. 195; 103 id. 388. '0 Ming V. Woolfolk, 116 U. S. 599, 602-3 (1886), cases. v. Silva, 125 id. To support an. actton of tort, it was held that the plaintiff must show: that the representations were untrue, were known by the defendant to be untme, were calculated to induce him to act, and he, believing them, was induced to act accordingly; that the representations must have been both false and fraudulent; that a positive statement of a falsehood, or the suppression of a material fact which the defendant ought to have known, would constitute the falsity; that if any essential point, requisite to maintaining the action, was wanting, recovery could not be had; and that the defendant, after judgment against him, was not entitled to an exemption of his property from execution for debt. 1 Where the fraudulent concealment or misrepresentation is made by the vendor of land, as to its nature, quality, quantity, situation, or title, the representation must be in reference to a material thing unknown to the vendee from want of examination, or from want of opportunity to be informed. And if the buyer trusts to representations not calculated to impose upon a man of ordinary prudence, or if he neglects means of information easily within his reach, he must suffer the consequences of his own folly and credulity. The vendee must show, further, that some deceit was practiced for the purpose of putting him off his guard, or that special confidence was reposed in the representations of the vendor, and that the contract was made upon the strength of that confidence. To support the action there must be fraud as distinguished from mere mistake.'' Where the question is as to misrepresentation of facts peculiarly within the defendant's knowledge, " the mere fact that the person deceived to his hurt had means of learning the truth, had he made diligent inquiry, is not necessarily fatal to the right to recover." 3 Thus, a distinct statement by the seller of a patents right that he owned the right, knowing it to be false, and with intent to deceive the buyer, and on which statement the buyer acted to his injury, will sustain an action, even if the buyer might have discovered the fraud by searching the records of the patent ofaoe.4 See Age, Full; Caveat, Emptor; Cokceal, 5; Conspiracy; Estoppel; Prospectus; Warranty, 3. Compare Dolus; Fraud; Pretense.