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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.

§ 370. 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.

§ 371. 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.

§ 372. Matters of fact.-In order to amount to a fraud the false representation must have been of a fact, i. e., something existent or non-existent in the present or past. Representations as to matters in the future are not actionable for fraud; for such things can not be said to have existence. Statements as to the future can be no more than promises, or mere predictions. If they are construed as promises, they must be enforced as contracts, not remedied as frauds; and if they are predictions they are merely opinions, which the law will not recognize as instruments of fraud.

§ 373. Fraudulent promises.-Although the general rule is well established that a promise unfulfilled is not a fraud nor the evidence of fraud, yet it must be admitted that in actual business affairs a promise is often used as the principal means of committing a deception. In recognition of this, some of the courts, though not all, have attempted to escape the rigor of the rule. It has in some states been held that, if there is a present fraudulent intent not to keep the promise, there is a fraud; for example, if one should buy goods and promise to pay for them, having the secret intention not to pay for them, this would be a false statement as to a present fact, namely, the intent. The decisions are not uniform, however. Many courts hold that the law can not recognize as a fact the present intent as to a future

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§ 374. Materiality.—It is essential that the misrepresentation shall have been material, i. e., it must have influenced and been a controlling reason for the transaction. It need not, however, have been the sole or even the principal inducement. Its materiality is made to appear sufficiently, if in the judgment of a reasonable person the false statement was one of the reasons for acting.

§ 375. Falsity.-The representation must have been false, but it need not have been literally false. If such words were used as would carry to an average man the false meaning, they would be effective for the fraudulent purpose. Indeed a fraud might be accomplished by the use of words true in a literal sense, but false in the sense that would be commonly given them.

§ 376. Wrong-doer's knowledge. If one innocently and upon reasonable grounds makes a statement, he can not be deemed guilty of a fraud even though the statement turn out to be false. He must have had some knowledge of the falsity. A statement will be regarded as false to defendant's knowledge, (1) if he had actual knowledge, (2) if he recklessly stated something as true when he had no grounds one way or the other, (3) if he stated something to be true of his own knowledge when he had only a belief. In each of these cases the defendant created in the mind of the plaintiff the impression that the defendant actually knew about the fact. There is another class in which the defendant may actually have had no bad motive and yet be deemed guilty of fraud, namely, where he was so specially situated that he was bound to know the

truth. Examples of the first three classes will easily suggest themselves. An example of the last class would be the case of one assuming to act as agent with certain powers; it is his duty to know his authority, and he is liable for any excesses even though he act under an honest belief that he had the authority.

§ 377. Wrong-doer's intent that the representation be acted on.-It is essential, to constitute a fraud in the legal sense, that the representation shall have been made with the intent that it should be relied and acted upon. This intent is to be gathered from the circumstances of the case. Where the representation is made between the parties themselves in a transaction, it is presumed that it was intended to be acted on, and no further proof is necessary in order to show such intention than that the defendant made the misstatement with knowledge of its falsity. But when the representation is made by a third person, such presumption does not arise, and there must be some proof that the person intended the misstatement to be relied on, or knew or had reason to know it was to be acted on.

$378. Who entitled to rely on representations.It would be obviously impracticable to permit persons to rely upon any and every misstatement they may hear or read, and to hold the author responsible for ensuing damage. For, business operations and even social intercourse would involve such risk as to be unsafe. The law wisely restricts the right of action for fraud to the persons who were intended to be influenced by the misrepresentation. If one who was not intended to be influenced nevertheless acts

and is injured by a misrepresentation, he is remediless. There are cases, however, where the whole public are intended to be influenced, as where corporations publish false prospectuses. In such cases any individual of the public who relies thereon and is injured has a right of action against the authors of the misrepresentation.

§ 379. Representation must have been acted on. -It is self-evident that if the misrepresentation is not acted upon, any damage that results can not be attributed to it. If it appears that the party complaining did not at all rely on the misstatement, whether because he did not believe it, or because he preferred to examine for himself, there is no right of action. If, however, the misrepresentation formed any material part, even though slight, of the inducement for entering into the transaction, the whole is tainted with the fraud and remedy will be given.

§ 380. Injured party's belief.-It is essential, in order to make out a case of fraud to show that the injured person believed the misstatement to be true. Of course, if he knew it was false, there is an end. to the action. And so, if by the exercise of ordinary diligence he could have known the truth, he can not complain that he was defrauded. If he did not know and was prevented from exercising ordinary diligence by any devices or tricks of the wrongdoer, his belief in the false statement would be justifiable.

As a general rule, a person is entitled to rely on a statement when it is made to him for the purpose of having him rely on it, and he is not chargeable with

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