Representation

1.

A statement regarding a fact

False representation

Not necessarily, ' See " The Reporters," &c., 1 South. Law E. 86, 2-23, 497 (1875); 3 id. 268 (1877); 5 id. 53 (1879); 25 Alb. Law J. 261 (1380); History of the Law Reports, 1 Law Quar. Eev. 136^9, 287-97 (1885). = Myers v. Callaghan, 10 Biss. 139, 150 (1881), cases. s Banks v. West Publishing Co., 87 F. E. 56 (1886), cases, Brewer, J.; Banks v. Manchester, 83 id. 143 (1885); 24 Am. Law Eev. 524-27 (1885), cases; 3 Kan. Law J. 242 (1886), cases. « Nashi).

Lathrop, 142 Mass. 35-39 (1886), cases; State i although often, a statement of fact known to be untrue.

Misrepresentation

A statement of fact not true in some particular, and misleading another to his injury. In alleging a tort in the sale of an article, it is necessary to use "' falsely represented," or an equivalent phrase implying fraud.* (1) Fraud consists in falsely representing a thing as a fact, or in the deceitful concealment of an existing fact.^ Where a party, by words or deeds, intentionally misrepresents a material fact, or produces a false impression, in order to mislead or to obtain an undue advantage of another, he is chargeable with positive fraud. The misrepresentation must be (1) of something material, constituting the inducement or motive to the act or omission of the other, and by which he is actually misled to his injury; and (2) as to something as to which one party places a known confidence in the other — not of a matter of opinion, equally open to both for examination and inquiry! and where neither party is presumed to trust to the other, but to rely upon his own judgment. ^ The misrepresentation which will vitiate a contract of sale must relate not only to a material matter constituting an inducement to the contract, but also to a matter respecting which the complaining party did not possess at hand the Ineans of knowledge; and must be a misrepresentation on which he' relied, and by which he was actually misled to his injury.* In some cases the falsity of the representation, not the bong, fides, is the determining inquiry.* See Knowledge, 1. ' (2) a. In the law of fire insurance, the statement of something as a fact which is untrue, and which the assured, knowing it to be not true, states with an intent to deceive the underwriter, or which he, without knowing it to be true, states positively as true, and which has a tendency to mislead, the fact being material to the risk.s As a representation to obtain insurance must always influence the judgment of the underwriter in regard to the risk, it must be substantially correct. It ' Cooper V. Landon, 102 Mass. 60 (1869). = [Grove v. Hodges, 55 Pa. 519 (1867). ' Smith V. Eichards, 13 Pet. 36-37 (1839), cases, Barbour, J.; Mason Lumber Co. D.,Buchtel, 101 U. S. 637 (1879); Buckner v. Street, 15 P. E. 368 (1883). < Slaughter v. Gerson, 13 Wall. 383-85 (1871), cases. Meld, J. See generally Welz v. Ehodius, 87 Ind. 12 (1882); Potts V. CSiapin, 133 Mass. 282-83 (1882); Clark ii. Edgar, 13 Mo. Ap. 351 (1882); Cooper v. Schlesinger, 111 U. S. 158 (1884). » Lynch v. Mercantile Trust Co., 18 F. E. 486 (1883), cases; Redgave o. Hurd, L. E., 20 C. D. 12 (1881); Be London, &c. Fire Ins. Co., 24 id. 153 (1883). differs from an express "warranty," as that always constitutes a part of the policy, and must he strictly and literally performed, i It is the duty of the assured to communicate every material fact; he cannot ui'ge as an excusfe for his omission that a fact was known to the miderwriter, unless the latter's knowledge was as full and particular as his own. 3 Where a policy contains contradictory provisions, or leaves it doubtfvd whether the exact truth should be a condition precedent, that the statements constitute a warranty is not to be favored. The policy will be construed against the insured, who prepares it.^ An " affirmative " representation is an affii Tnation of a fact existing when the contract begins; a " promissory" representation, a promise to be performed after the contract has come into existence.* A representation on information derived from others, reported truly and as resting on information, does not avoid the policy, if the information proves incorrect.* b. In the law of marine insurance, an explicit aflirmation or denial of a fact, or such an allegation as irresistibly leads the mind to the same conclusion.^ c. In the law of life insurance, all statements must be true when the materiality is removed from the consideration of a court or jury by an agreement that the statements are absolutely true, and that, if untrue in any respect, the policy shall be void.' Where there is no express condition that the statements and declarations made in the application are in all respects true, as far as affects the interests of the insurer, every statement and declaration must be true.. There is no place for the argument that a false statement was not material to the risk, or that it was a positive advantage to the insurer to be deceived by it. The statement need not come up to the degree of a warranty, nor be a representation even, if that conveys an idea of an affirmation having any technical character; as, where the insured, being "married;" stated that he was " single." At the same time, there are many cases to the effect that where false answers » Hazard v. New England Mar. Ins. Co., 8 Pet. *580 (1834), M'Lean,.1. See also 49 Me. 200; 21 Conn. 19; 34