"Pay part of the purchase money at the time”. To uphold a contract under this provision "something must pass between the parties besides mere words, some overt symbolical act, like the payment of earnest-money or the giving of a receipt or credit in writing for such payment, where the same consists in the release or extinguishment in whole or in part of a debt previously due from the seller to the buyer. "The part payment of the purchase money must be made at the time such contract is entered into. Where the vendee, at the time of the sale and as a part of the purchase price of the goods, agrees to pay, and does afterwards pay, a debt of the vendor, this does not take the sale out of the statute. Where goods are sold in part payment of a debt due from the vendor to the vendee and the latter credits the value thereof upon the account at the time of sale, this is a valid payment. If the credit is not actually given, the agreement is void.

R. S. 2309. Whenever goods shall be sold at public auction and the auctioneer shall, at the time of sale, enter into a sale-book a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser and the name of the person for whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section. (i.e., Section 2308 supra).

The memorandum must be made at the time of sale; it cannot be made subsequently. A person acting as agent for the vendor cannot after a sale was made by an auctioneer, bind the vendee by any memorandum he may draw, the vendee not assenting.

CHAPTER X.

FRAUD AND ITS EFFECTS.

Generally.-Fraud has never been accurately defined by the courts. What amounts to fraud in one case may not in another, and the courts, in order to be able to deal with fraud as it arises, do not apply any absolute test of fraud but judge each case for itself. Fraud may occur in such a variety of ways that it is impossible to define it exactly, for legal purposes. The law as to what are the required elements of fraud is well settled, but what facts will constitute fraud will depend upon the particular circumstances of each case. Generally speaking, a fraud is defined as "a trick or artifice employed by one person to induce another to fall into error, so as to make an agreement contrary to his interest." This definition applies, however, only to cases where there is an actual intent to defraud. As will be seen, an actual intent to defraud is not necessary to constitute fraud, and a man may be liable for fraud sometimes when he acts in perfectly good faith. This definition does not apply to cases of constructive fraud.

Fraud is variously classified, the main division being into actual and constructive fraud. Actual fraud is fraud in the common acceptation of the term, and arises when one party intentionally or by reckless conduct puts or keeps another in ignorance of facts which lead him to contract to his disadvantage. Constructive fraud exists independently of the intention of the parties, and arises out of the relationship of the parties. Constructive fraud generally arises between persons who stand in a fiduciary relation, when one has gained an advantage over another by failure to disclose knowledge, or acting in violation of the trust relation, but it may also occur in other cases.

Fraud may be set up as a defense to the enforcement of a contract, or may be ground for rescinding one, or it may

be ground for obtaining damages by reason of the fraud. The fraud which will avoid a contract is also ground for a suit for damages. A party who has been defrauded, if he acts in proper time, generally has his choice of remedies.

Fraud is nearly always connected with the making of a contract, between the parties, but it need not be necessarily So. For instance, one may fraudulently represent that the financial standing of another is of a certain nature, and if the one to whom such statement is made acts upon it and is damaged, the one making it will be liable in damages.

Fraud will vitiate everything. If it can be shown that a contract, whether oral, written or under seal, was entered into through fraud, the injured party may avoid the contract or pursue any other appropriate remedy.

In order to make out a case of fraud which will entitle a person to legal redress it must be shown that another made to him 1) a false representation of a material fact, 2) that the person making it knew or ought to have known that it was false, 3) that the person to whom it was made believed it to be true and had a right to rely upon it, 4) that it was made with intent to deceive, and 5) that he did rely upon it and was damaged thereby. Each of these elements will be considered separately.

The representation.-A representation may consist of words or acts. Any conduct on the part of one person which is ordinarily calculated to convey an impression of fact to another, and which does convey such impression to him, is a representation. A representation, as the term is ordinarily used, is made preliminarily to entering into a contract, and is an inducement to the party making it, but it does not become a part of the contract itself. When a representation becomes a part of the contract itself, it is called a warranty, that is, the party making it then contracts that it is true. Thus, if a man sells a machine to another and in effecting the sale states that the machine is in first class condition, and it is bought in reliance on the statement, the statement, if untrue, is a fraudulent representation. But if, at the time of making the sale he warrants, or agrees, as a part of the contract of sale itself, that the machine is in such condition, the statement is a warranty. The difference between a fraudulent representation is, further, that in order to uphold a suit on a warranty it is not necessary to show the elements of fraud;

for instance, that the party relied upon and believed it to be true, etc. A warranty, as it is a contract, may be made by a party with the belief that it is true, and may be believed by the party to whom it is made to be untrue, and the maker may still be liable upon it, while in cases of fraud generally an evil design exists, and if the party to whom a representation is made does not believe it, or have a right to believe it, he cannot hold the other party thereon. Whether a certain statement in making a contract is a representation or a warranty, depends upon the circumstances of the case and the intention of the parties. A warranty may be fraudulently made; in such case the party damaged may sue on the warranty or sue for the fraud.

A representation must be one of a past or an existing fact, and must be more than a mere expression of opinion. It must be of such a nature that a man of reasonable intelligence will be convinced thereby and will act upon it.

A person will ordinarily not be influenced by the mere expression of opinion of another in making a contract, and therefore such expression is not calculated to deceive. Thus, a statement by the seller of real estate that in his opinion it is worth a certain amount, or will sell for a certain amount in the future, although believed by him to be untrue, would not amount to a fraudulent representation.

When a statement of fact is made, however, although expressed as an opinion, it will amount to a representation. Thus, where a seller of stock, who had weighed it, and knew its exact weight, stated to a buyer that in his opinion the stock had a certain weight, giving a higher figure, it was decided that his expression of opinion amounted to a statement that he knew of no fact inconsistent with his opinion as expressed, and he was held liable for fraud. Where one in selling a house which was in bad condition, to his knowledge, stated that in his opinion it was in good condition, he was held liable for fraud. The form of the expression does not determine whether it is an opinion or a statement of fact, but its effect must be looked at.

Silence generally will not amount to a fraudulent representation, but where it is of such a character as to conceal a material fact which it is the duty of the party concealing to disclose, it will. For instance, if a man sell another a horse suffering from some disease which cannot be observed

upon a reasonably careful inspection, and in making the sale he does not disclose the condition of the horse when he knows of it, his silence will amount to fraud. When certain statements are made and there is silence as to others which are material, there is practically a representation that what has been stated is all that is material. The same rule holds where one endeavors to conceal a fact by preventing another from making inquiry. Thus, when one selling a horse which is blind says nothing about it, and on the buyer's inspecting the horse persistently draws the buyer's attention from the horse's head, his conduct is fraudulent. A buyer who has knowledge of some fact giving property a high value, not known to the seller, is under no obligation to disclose his knowledge to the seller, unless the parties stand in a position of trust towards each other. Thus, if A knows of a valuable mine on B's land, and B does not, A may buy such land of B without telling him of the mine. The same rule holds as to the seller. If he knows of some cause which will decrease the value of property sold by him, not due to an inherent defect in it, he is not bound to disclose it to the buyer. In a case in Wisconsin the seller of land knew that the purchaser put a high estimate on the value of land because he believed that a certain person had power by walking over the land to detect minerals therein, and the seller therefore demanded a high price, not in proportion to the real value. The seller, however, did nothing to induce the false opinions of the buyer and made no representations whatever. It was decided that the seller was not liable in selling such land at a high price, as it was not his duty to set the buyer right in regard to his erroneous belief.

A statement of a future event, or holding out prospects, is not actionable. Thus, a statement to a buyer of stock in a mining corporation that the purchaser could not lose and that the mine would pay a big profit, is a mere expression of opinion. Representations as to the future value of property are not fraudulent in law.

Where persons stand in a confidential relation, such as agents, attorneys, trustees, executors, administrators, parents, husband or wife, etc. they must make full disclosures of all facts within their knowledge in dealing with those whom they represent, or towards whom they sustain a trust relation, or they will be guilty of fraud. But the mere fact