and intended to deceive.51 But wherever there is a fiduciary relation between the vendor and the vendee, or confidence reposed and accepted (as where the vendor knowingly permits the purchaser to rely upon his actual or professed superior skill or knowledge), then a misrepresentation as to value made in bad faith is actionable fraud." 52 A misrepresentation as to value made, not by the vendor, but by an apparently disinterested person, is to be treated as an ordinary opinion, and is, therefore, actionable if made in bad faith.53

There is a conflict of authority upon the question whether statements as to the amount previously offered, given or received for property are to be regarded as statements of a material fact, or as amounting to general assertions of value, but the better view seems to be that such statements are actionable as representations of fact.54

15. Culpability of the defendant.-Though the defendant may by his representations have influenced the plaintiff's acts to the latter's damage, there will be no tort liability unless the circumstances were such as to render the defendant's conduct culpable.

51 Harvey v. Young, Yelverton 21, LEADING ILLUSTRATIVE CASES; Speiglemeyer v. Crawford, 6 Paige 254 (N. Y.); Picard v. McCormick, 11 Mich. 68; Manning v. Albee, 11 Allen 520 (Mass.); Kimball v. Bangs, 144 Mass. 321.

52 Allen v. Hart, 72 Ill. 104; Murray v. Tolman, 162 Ill. 417; Fisher v. Budlong, 10 R. I. 525; Simar v. Canaday, 53 N. Y. 298; Picard v. McCormick, 11 Mich. 68.

53 Medbury v. Watson, 6 Met. 246 (Mass.).

54 Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321; Fairchild v. McMahon, 139 N. Y. 290; Ives v. Carter, 24 Conn. 392; Ekins v. Tresham, 1 Lev. 102 (Eng.). The contrary view is taken in many cases. Bishop v. Small, 63 Me. 12, LEADING ILLUSTRATIVE CASES. Van Epps v. Harrison, 5 Hill 63 (N. Y.).

The existence of such culpability depends upon two questions:

(1) Was the defendant's representation so related to the harmful consequence to the plaintiff that he ought to be held responsible for its occurrence? (2) Was there any ground upon which the defendant's act, though so connected with the consequence, may be justified or excused?

Where it was intended by the defendant that the plaintiff should rely and act upon the representation, there is such a relation between the defendant's act and its effect upon the plaintiff as to render the former legally responsible for that effect.55 If he intended that the representation should come to the knowledge of the plaintiff and be believed, and that the plaintiff should rely and act upon it, then he is legally responsible for that consequence when it occurs and for any harm or loss resulting to the plaintiff thereby, provided harm is a natural result of such reliance. Intent to cause harm to the plaintiff is not necessary; 56 if it is a proximate or natural

55 Henry v. Dennis, 95 Me. 24; Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, LEADING ILLUSTRATIVE CASES. This is taken for granted in most of the cases.

56 Cowley v. Smyth, 46 N. J. L. 380, LEADING ILLUSTRATIVE CASES; Foster v. Charles, 7 Bing. 105 (Eng.); Smith v. Chadwick, 9 App. Cas. 187, 201 (Eng.).

Indeed, the motive of the defendant is immaterial, provided there be intent to influence and "scienter." Corrupt motive of gain for the defendant or malicious motive of injury to the plaintiff are not essential to liability. Nor is it important whether the defendant actually received any benefit. Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321. In Pasley v. Freeman, 3 T. R. 51 (Eng.), Buller, J., said: "If A, by fraud or deceit, cheat B out of £1000, it makes no difference to B whether A or any other person pockets the £1000. He has lost his money, and if he can fix fraud upon A, reason seems to say that he has a right to such satisfaction against him.''

or likely consequence of the plaintiff's reliance upon the representation, it is sufficient.57

This is as far as the authorities generally extend the liability. Yet the usual statement that intent to influence and deceive is necessary to liability for deceit can hardly be accepted as true without some qualification. In accordance with the broad principle that normally, in the absence of some justification, forbids doing that which is likely to cause harm to others-the duty to avoid the causation of reasonably foreseeable harmful consequences-we should expect to find liability for deceit without actual intent to influence or deceive.58 And to some extent, we do find it. One who makes a representation is responsible for its being understood and relied upon in a sense different from that intended or contemplated; in any sense, indeed, in which as a reasonably prudent man he ought to have foreseen the likelihood of its being understood. This subject has been discussed in a previous section and need not be enlarged upon here.59

57 It must be a proximate consequence. Collins v. Jackson, 54 Mich. 186; Polhill v. Walter, 3 Barn. & Ad. 114 (Eng.). Compare Bosanquet, J., in Foster v. Charles, 7 Bing. 108 (Eng.): "If a person tells a falsehood, the natural and obvious consequence of which, if acted upon, is injury to another, that is fraud in law." See also Fottler v. Moseley, 185 Mass. 563, upon the question what injurious consequences are proximate.

58 Such expressions as the following are frequently found in the decisions: "The defendant must be taken to have intended, that all such persons should give credit to the acceptance [representation], and thereby act upon the faith of that representation, because that, in the ordinary course of business, is its natural and necessary result." (Polhill v. Walter, 3 Barn. & Ad. 114 (Eng.), per Lord Tenterden, C. J.) This is merely an artificial, though common, way of saying, under the fiction of a presumption, that the defendant is legally responsible for the natural and foreseeable effect of his act upon others. Compare Fottler v. Moseley, 185 Mass. 563.

59 See § 10.

16. Representation, to whom made.-Where a representation is made directly to A, with expectation or intent that A shall rely upon it and be influenced by it, it is sufficient to create responsibility for the intended or contemplated consequence." A representation made to the public generally, or to a certain class of persons, is to be regarded as made directly to all members of the public or of that class, and may be relied upon by any person for whom it is so intended.61

If a representation be made directly to A, but with the intent or expectation that it be communicated to B, and that B will rely upon it as a representation of the defendant, and B does so rely upon it, the maker of the representation is responsible.62 False representations respecting one's pecuniary condition and responsibility, made to a mercantile agency with the object of obtaining credit, to be communicated by the agency to its subscribers, are held actionable under this principle.63

The liability of the maker or vendor of a chattel, or of any person who puts out a chattel into the hands of another, for injuries to others than the original recipient, resulting from defects, dangerous incidents or unknown qualities of the chattel, might

co This is the normal case.

61 Smith v. Chadwick, 9 App. Cas. 187 (Eng.); Gerhard v. Bates, 2 El. & Bl. 476 (Eng.); Tindle v. Birkett, 171 N. Y. 520; Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, LEADING ILLUSTRATIVE CASES; Polhill v. Walter, 3 Barn. & Ad. 114 (Eng.).

62 Stoney Creek Woolen Co. v. Smalley, 111 Mich. 321; Tindle v. Birkett, 171 N. Y. 520; Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31; Henry v. Dennis, 95 Me. 24.

63 Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31, LEADING ILLUSTRATIVE CASES; Tindle v. Birkett, 171 N. Y. 520.

be discussed as a phase of the law of deceit. It is usually, however, and more conveniently considered under other topics.

64

17. Justification and excuse.-There are two important grounds of justification or excuse which may be available as a defense to an action for deceit:truth of the representation and bona fide belief in its truth. Truth as a justification has been discussed in an earlier part of this chapter.65 Knowledge that the representation is false, or lack of belief that it is true, is the element that distinguishes tortious deceit from non-tortious, innocent misrepresentation; it is that which constitutes the "fraud." To tell a falsehood innocently is not actionable; to tell it knowingly (scienter) is a tort. But knowledge is not necessary; it is rather a question of honest belief and good faith, or, according to one view, of negligence as well.

18. The defendant's knowledge or belief-Scienter. The possible states of the defendant's belief regarding the truth or falsity of the representation may be classified thus:

(1) Belief amounting to conviction that it is true (I know; I am satisfied, etc.).

(2) Belief that it is true, yet consciously recognized as not convincing.

(3) Lack of belief that it is true, which may be: (a) Belief or knowledge (conviction) that it is false, or (b) lack of definite belief either way (reckless statements).

64 See subjects, LEGAL CAUSE AND NEGLIGENCE, SALES. 65 See § 11.