they will not constitute a valid contract, nor can they be corrected by the entry made in the broker's book ".

Where A. agreed to buy, and B. to sell a quantity of “St. Petersburgh clean hemp," at a certain price, through the medium of a broker, who acted as agent for both parties; the broker delivered a bought note to A., in which by mistake he inserted "Riga Rhine hemp," instead of "St. Petersburgh clean hemp," and then delivered a sale note to B., stated correctly according to the original contract; held, that the variance between the two notes was fatal, and therefore that B. could not recover in an action against A. for not completing the contract. So, where a broker employed to effect a sale of goods for his principal, made a verbal contract with the vendee, and after entering it into his own book without signing it, delivered a bought and sold note to the vendor and vendee respectively, each paper differing in its items; held, that there was no memorandum in writing of the contract to bind either d.

In an action by the vendee on a contract made through a broker, it is sufficient for the vendee to produce the bought note, handed to him by the broker, and to shew the employment of the latter by the vendor. If the sold note vary from the bought note, it lies on the vendee to prove that variance by producing the sold note e.

But where a broker delivered to the vendor bought and sold notes written on one sheet of paper, and the day for payment was inserted at the end of the bought note only, but in those made out for the purchasers, the day was inserted at the end of the bought as well as of the sold note; held, that as the bought

and sold notes delivered to the vendor were both written on one sheet of paper, the whole must be considered as forming one contract; and consequently that there was no variance a.

A broker cannot, without the assent of his principal, delegate his authority. Where A. having goods to sell, employed a broker for the purpose, and B. being desirous of purchasing them, authorized the broker's salesman to offer a certain price, who in consequence brought the parties together, and who having concluded the contract, in the absence of the salesman, dictated to him the terms of it; of which he made an entry in his master's book, but did not sign it, and afterwards communicated the circumstances to the broker, who directed a clerk to enter and sign the contract in his book, and sent a sale note, signed by himself, to A., but no bought note was sent to B.; held, that there was no note or memorandum in writing signed by an agent duly authorized, to satisfy the statute.

SECTION XIX.

PLEADINGS.

In declaring upon a contract within this statute, it is not necessary to allege that it is in writing; for where an act makes writing necessary to a matter where it was not so at common law, it is not necessary to state in the declaration that it was in writing, though it must be proved to have been so; but in pleading it is said to be otherwise, for if the defendant plead in bar any agreement which is required by the statute to be in writing, as that another person, for a good consideration, promised to be answerable to the plaintiff for the debt, he must state the promise to be in writing, so that it may appear to be a contract which the plaintiff can enforce c.

Where defendant, in assumpsit, pleaded that the contract declared

upon was a guarantee for the debt of another, and that

'M'Clean v. Dunn, 4 Bing. 722. ante, 1063. ante, 1063.

Henderson v. Barnewall, 1 Y. & J. 387. See Maclean v. Dunn,

2.

с

1 Saund. 211. b. Id. 276. n. 1.

no memorandum thereof, stating the consideration, was, or is in writing signed by the defendant or any person authorized by him; it was held, that the plaintiff might reply, that a memo randum of agreement in writing, stating the consideration, wa signed by defendant, without setting out such memorandum i the replication. Formerly the statute might be taken advan tage of under the general issue, but since the new rules it mus be specially pleaded.

a Wakeman v. Sutton, 2 Adol. & Ellis, 78. 4 Nev. & M. 114. See also Lilly v. Hewitt, 11 Price, 494. Lysaght v. Walker, 5 Bligh N. S. 1. In Lowe v. Eldred, 1 C. & M. 239, the contrary was decided, but

that case may be considered as ove ruled.

b See Hawes v. Armstrong, Bing. N.C. 761. 1 Hodges, 179. A drews v. Smith, 2 C. M. & R. 62 1 Gale, 335.1 Ch. Pl. 909.

CHAPTER XIV.

FRAUDULENT MISREPRESENTATION.

L Fraudulent misrepresentation respecting the character or credit

of another.

II. Frandulent misrepresentation respecting the subject matter of a

ontract

PAGE

1077

SECTION I.

FRAUDULENT MISREPRESENTATION RESPECTING THE CHARACTER
OR CREDIT OF ANOTHER.

person makes a fraudulent misrepresentation to another of any matter that is enquired of him, in consequence of which such other person is induced to do some act, whereby he sustains an injury, an action on the case, in the nature of deceit, will lie at the suit of the party injured, against the person making the fraudulent misrepresentation.

this action the defend

ant must that his representa

be aware

tion was

false.

To sustain such an action, it must appear that the defendant To sustain knew that the representation which he made was false a, and that the plaintiff had acted on the faith of such representation. If therefore it should appear, that the plaintiff was aware of the falsity of the representation, or even that he had the means of detecting it, and ascertaining the truth, and neglected to do 50; or that he placed a blind or wilful confidence in a representation which was not calculated to impose on a man of ordinary prudence and circumspection, the law will afford him To relief, even though he was deceived; for it is a general rule relating to all actions for torts, and peculiarly applicable to

The representation must also be in writing. See 9 G. IV. c. 14. s. 6, post, 1074. On this subject, Mar

tin's Treatise on Lord Tenterden's
Act may be consulted with great
advantage.

It is not necessary

that the representa

tion should be made

through an evil motive.

actions for deceit, that however culpable the conduct of the individual may have been, the law will not lend its aid to any man whom the exercise of ordinary vigilance or discretion would have protected from injury, in accordance with the maxim vigilantibus non dormientibus jura subveniunt.

The first case on this subject is Pasley v. Freeman, which was an action by the plaintiffs against the defendants for fraudulently misrepresenting to them the solvency of one Falch, to whom they afterwards sold goods, and who turned out to be insolvent. The plaintiffs had a verdict on the third count, which in substance stated that the defendant, knowing to the contrary, fraudulently represented to the plaintiffs that Falch was a person safely to be trusted; that in consequence of such representation, and believing it to be true, the plaintiffs sold goods on credit to Falch, and by reason of his inability to pay for them, were likely to lose their price. On a motion in arrest of judgment, the court, (Lord Kenyon, C. J., Ashhurst and Buller, Js.,) Grose, J. dissentiente, were of opinion, that upon general principles, where the act of one man was the immediate cause of loss of property to another, the law conferred on the other a right of action, unless the act committed could be justified or excused, and that here the fraudulent misrepresentation of the defendant, for which there could be no possible justification or excuse, had occasioned to the plaintiffs the loss of their goods, and consequently that the third count, which in substance stated these facts, was good a.

It is not necessary, in order to sustain this action, that the defendant should derive any advantage from the false representation, or that he should have colluded with the person who did derive the advantage. Nor is it necessary that he should make the representation with an intention to defraud, though it was formerly held otherwise ". "It is sufficient that

he knew that the representation was false; for it is a fraud in

Pasley v. Freeman, 3 T. R. 51. "I confess myself still unable to comprehend the ground on which the case of Pasley v. Freeman was decided." Per Grose, J., in Haycraft v. Creasy, 2 East, 104.

b Id.

Ashlin v. White, Holt, 387. Scott v. Lara, Peake, 225. See Ames v. Milward, 8 Taunt. 367. 2 Moore, 713. Tapp r. Lee, 3 B. & P. 367.