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S 849. A deceit, within the meaning of the last section, is either:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;1

2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;2

3. The suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact;3 or,

4. A promise, made without any intention of performing it.1

'See § 757, and notes.

* See ib.

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Addington v. Allen, 7 Wend., 20. This subdivision is

not in the same form as the corresponding subdivision of § 757, as that would be obviously too broad in this case.

• See this question discussed in notes to § 757.

$850. One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit.

It is necessary that the party charged with fraud should have intended to defraud the party who was in fact misled (Van Kleeck v. Le Roy, 37 Barb., 544; Seizer v. Mali, 32 id., 76), or to defraud the public (Cross v. Sackett, 2 Bosw., 617; 6 Abb. Pr., 247; 16 How. Pr., 62; Cazeaux v. Mali, 25 Barb., 578; Newbery v. Garland, 31 id., 121; Morse v. Swits, 19 How. Pr., 275; Gerhard v. Bates, 2 El. & Bl., 476), or a class of persons including the party injured.

$851. One who obtains a thing without the consent of its owner, or by a consent afterwards rescinded,1 or by an unlawful exaction which the owner could not at the time prudently refuse, must restore it to the person from whom it was thus obtained, unless he has acquired a title thereto superior to that of

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such other person, or unless the transaction was corrupt and unlawful on both sides.*

This includes duress (Foshay v. Ferguson, 5 Hill, 154),
menace (see Eadie v. Slimmon, 26 N. Y., 9), fraud
(Chester v. Bank of Kingston, 16 N. Y., 336; Hen-
nequin v. Naylor, 24 id., 139; Nichols v. Michael,
23 id., 264; Abbotts v. Barry, 2 Brod. & B., 369),
undue influence (Sears v. Shafer, 6 N. Y., 272; Not-
tidge v. Prince, 2 Giff., 246), mistake (Bank of Com-
merce v. Union Bank, 3 N. Y., 230; Goddard v.
Merchants' Bank, 4 id., 147; Martin v. McCormick,
8 id., 331; Gardner v. Mayor of Troy, 26 Barb., 423;
Allen v. Mayor of N. Y., 4 E. D. Smith, 404; Gom-
pertz v. Bartlett, 2 El. & Bl., 849), and cases in
which there is a total failure of consideration (Eno
v. Woodworth, 4 N. Y., 249; see Gillet v. Maynard,
5 Johns., 85; Collier v. Coates, 17 Barb., 471).
It is by no means easy to reconcile all the authorities

on this point with each other, or with natural justice. Justice, rather than the decisions, has been followed in the text. The difficulty seems to be that the courts have established one rule as to the reclamation of money paid, which is simply the rescission of an executed contract, and another as to the rescission of a promise to pay, which is an executory contract. Lord DENMAN, in Skeate v. Beale (11 Ad. & El., 983), says "the distinction is obvious," and so it is, but the principle of the distinction is not.

There is no doubt that fees, illegally exacted, may be recovered back, although not paid under a mistake of fact (American Exch. Fire Ins. Co. v. Britton, 8 Bosw., 148; Britton v. Frink [Ct. of Appeals], 3 How. Pr., 102; Dew v. Parsons, 2 B. & Ald., 562; Steele v. Williams, 8 Exch., 625; Townshend v. Dyckman, 2 E. D. Smith, 227; Ripley v. Gelston, 9 Johns., 201; Frye v. Lockwood, 4 Cow., 454). Duress of goods is sufficient to entitle the owner to recover back money paid for their release (Harmony v. Bingham, 12 N. Y., 99; Clinton v. Strong, 9 Johns., 370; Oates v. Hudson, 6 Exch., 346; Atlee v. Backhouse, 3 M. & W., 642; Gibbon v. Gibbon, 13 C. B., 205; Ashmole v. Wainwright, 2 Q. B., 837); and so where a corporation refused to transfer stock upon its books, until the stockholder paid an unjust claim (Bates v. N. Y. Ins. Co., 3 Johns. Cas., 238), and where a railway company refused to receive goods until an unlawful charge was paid (Parker v. Great Western Railw. Co., 7 M. & G., 253), the money paid was recovered back. And so it has been held where money was obtained by threat of a penal action (Unwin v. Leaper, 1 M. & G., 747), or paid in

When demand necessary.

Responsibility for

negligence,

&c.

order to prevent a wrongful sale under execution (Wisner v. Bulkley, 15 Wend., 321).

On the other hand it has been held that money paid under a claim of right, without compulsion or objec tion (N. Y. & Harlem R. R. Co. v. Marsh, 12 N. Y 308), or even under protest (Fleetwood v. City of N Y., 2 Sandf., 475; Sprague v. Birdsall, 2 Cow., 419), or in mere ignorance of law (Wilson v. Ray, 10 Ad. & El., 82), cannot be recovered back.

This is intended to provide for the exceptions created
by the Title on NEGOTIABLE INSTRUMENTS, and by
section 499.

Daimouth v. Bennett, 15 Barb., 541; Best v. Strong, 2
Wend., 319; Burt v. Place, 6 Cow., 431.

$852. The restoration required by the last section must be made without demand; except where a thing is obtained by mutual mistake, in which case the party obtaining the thing is not bound to return it until he has notice of the mistake.2

Utica Bank v. Van Gieson, 18 Johns., 485; see Code La.,

2279, 2280; Code Napoleon, 1376, 1377.

See Kelly v. Solari, 9 M. & W., 58.

S 853. Every one is responsible, not only for the willful acts, result of his willful acts, but also for an injury occa`sioned to another by his want of ordinary care or skill in the management of his property or person; except so far as the latter has, willfully, or by want of ordinary care, brought the injury upon himself.2

Other obligations.

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S854. Other obligations are prescribed by the

First and Second Divisions of this CODE.

PART IV.

OBLIGATIONS ARISING FROM PARTICULAR TRANSAC

•TIONS.

TITLE I. Sale.

II. Exchange.

III. Deposit.

IV. Loan.

V. Hiring.

VI. Service.

VII. Carriage.

VIII. Trust.

IX. Agency.
X. Partnership.
XI. Insurance.

XII. Indemnity.

XIII. Guaranty.

XIV. Lien.

XV. Negotiable instruments.

XVI. General provisions.

TITLE I.

SALE.

CHAPTER I. General provisions.

II. Rights and obligations of the seller.
III. Rights and obligations of the buyer.
IV. Sale by auction.

CHAPTER I.

GENERAL PROVISIONS.

ARTICLE I. Sale.

II. Agreements for sale.

III. Form of the contract

ARTICLE I.

SALE.

Bale, what,

Subject of sale.

SECTION 855. Sale, what.

856. Subject of sale.

S855. Sale is a contract by which, for a pecuniary consideration, called a price, one transfers to another an interest in property.

S 856. The subject of sale must be property, the title to which can be immediately transferred from the seller to the buyer.

ARTICLE II.

Agreement for sale.

AGREEMENTS FOR SALE.

SECTION 857. Agreement for sale.

858. Agreement to sell.

859. Agreement to buy.

860. Agreement to sell and buy.

861. What may be the subject of the contract.

862. Agreement to sell real property.

863. Usual covenants in deeds of grant.
864. Language of usual covenants.

S 857. An agreement for sale is either:
1. An agreement to sell;

2. An agreement to buy; or,

3. A mutual agreement to sell and buy.

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