leaves them to the judgment of the buyer.' The Roman Law adopted the same doctrine. Ea, quæ commendandi causa in venditionibus dicuntur, si palam appareant, venditorem non obligant; veluti, si dicat servum speciosum, domum bene ædificatam.2 But, if the means of knowledge are not equally open, the same law pronounced a different doctrine. At, si dixerit, hominem literatum, vel artificem, præstare debet; nam hoc ipso pluris vendit.3 The misrepresentation enhances the price. The same rule will apply, if any artifice is used to disguise the character or quality of the commodity; or to mislead the buyer at the sale; such as using puffers and underbidders at an auction, or other sale; or holding out false colours, and thereby taking the buyer by surprise.5

§ 202. In the next place, the party must be misled by the misrepresentation; for, if he knows it to be false when made, it cannot be said to influence his conduct; and it is his own indiscretion, and not any fraud or surprise, of which he has any just complaint to make under such circumstances.6

§ 203. And in the next place, the party must have been misled to his prejudice or injury; for Courts of Equity do not, any more than Courts of Law, sit for the purpose of enforcing moral obligations, or correcting unconscientious acts, which are followed by no loss or damage. It has been very justly remarked, that, to support an action at law for a misrepresentation, there must be a fraud committed by the defendant, and a damage resulting from such fraud to the plaintiff. And it has been observed with equal truth 1 2 Kent, Comm. Lect. 39, p. 485, (2d edition). 2 Dig. Lib. 18, tit. 1, 1. 43.

3 Ibid.

42 Kent, Comm. Lect. 39, p. 482, 483, 484, (2d edition). Turner v. Harvey, Jacobs, R. 178.

5 Bromley v. Alt, 3 Ves. 624; Smith v. Clarke, 12 Ves. 483; Twining v. Maurice, 2 Bro. Ch. R. 330; Marquis of Townshend v. Stangroom, 6 Ves. 338; Bexwell v. Christie, Cowper, R. 385; 1 Fonbl. Eq. B. 1, ch. 4, § 4, note (r) ; Pickering v. Dawson, 4 Taunt. R. 785.

6 See Pothier de Vente, n. 210.

7 Vernon v. Keys, 12 East, 637, 638.

by a very learned Judge in Equity, that fraud and damage coupled together will entitle the injured party to relief in any Court of Justice.1

204. Another class of cases for relief in Equity is, where there is an undue concealment, or suppressio veri, to the injury or prejudice of another.2 It is not every concealment, even of facts inaterial to the interest of a party, which will entitle him to the interposition of a Court of Equity. The case must amount to the suppression of facts, which one party, under the circumstances, is bound in conscience and duty to disclose to the other party, and in respect to which he cannot innocently be silent. It has been said by Cicero, Aliud est celare, aliud tacere. Neque enim id est celare, quicquid reticeas; sed cum, quod tu scias, id ignorare emolumenti tui causâ velis eos, quorum intersit id scire. It has been remarked by a learned author, that this definition of concealment, restrained to the efficient motives and precise subject of any contract, will generally hold to make it void in favour of either party, who is misled by his ignorance of the thing concealed.* And Cicero proceeds to denounce such concealment in terms of vehement indignation. Hoc autem celandi genus quale sit, et cujus hominis, quis non videt? Certe non aperti, non simplicis, non ingenui, non justi, non viri boni; versuti potius, obscuri, astuti, fallacis, malitiosi, callidi veteratoris, vafri.5

205. But this statement is not borne out by the acknowledged doctrines, either of Courts of Law, or of Courts of Equity, in a great variety of cases. However correct Cicero's view may be of the duty of every man, in

1 Bacon v. Bronson, 7 John. Chan. R. 201; Fellows v. Lord Gwydyr, 1 Simons, R. 63.

2

1 Fonbl. Eq. B. 1. ch. 2, § 8, and note (≈); Id. ch. 3, § 4, and notes ; Jarvis v. Duke, 1 Vern. R. 19; Evans v. Bicknell, 6 Ves. 173, 182.-Sometimes, as in the case of Broderick v. Broderick, (1 P. Will. 239, 240,) there may occur both a suppressio veri and a suggestio falsi.

3 Cic. de Offic. Lib. 3, ch. 12, 13. See also Pothier de Vente, n. 242,

243.

4 Marshall on Insur. B. 1, ch. 11, § 3, p. 473.

Cic. de Offic. Lib. 3, cap. 13.

2

point of morals, to disclose all facts to another with whom he is dealing, which are material to his interest; ' yet it is by no means true, that Courts of Justice generally, or at least in England and America, undertake the exercise of such a wide and difficult jurisdiction. Thus, it has been held by Lord Thurlow, (and the case falls precisely within the definition by Cicero of undue concealment,) that if A., knowing there to be a mine in the land of B., of which he knows B. to be ignorant, should, concealing the fact, enter into a contract to purchase the estate of B. for a price, which the estate would be worth without considering the mine, the contract would be good; because A., as the buyer, is not obliged, from the nature of the contract, to make the discovery. In such cases, the question is not, whether an advantage has been taken, which in point of morals is wrong, or which a man of delicacy would not have taken. But it is essentially necessary, in order to set aside the transaction, not only that a great advantage should be taken; but also, that there should be some obligation on the party to make the discovery. A Court of Equity will not correct, or avoid a contract, merely because a man of nice honour would not have entered into it. The case must fall within some definition of fraud; and the rule must be drawn, so as not to

1 Dr. Paley adopts Cicero's doctrine in its full extent, as a duty of moral and religious obligation. "To advance, (says he) a direct falsehood in recommendation of our wares, by ascribing to them some quality, which we know they have not, is dishonest. Now compare with this the designed concealment of some fault, which we know they have. The motives and the effects of actions are the only points of comparison in which their moral quality can differ. But the motives in these two cases are the same, namely, to produce a higher price than we expect otherwise to obtain; the effect, that is, the prejudice to the buyer is the same." Paley, Moral Philos. B. 3, ch. 7, p. 116. The question, What degree of concealment is unjust in a legal or moral sense? has been often mooted by distinguished jurists, as well upon the cases put by Cicero, as in other cases. See Grotius, B. 2, ch. 12, § 9; Puffendorf, Law of Nature, B. 5, ch. 3, § 4; Pothier de Vente, n. 233 to 242; Id. n. 297, 298; 2 Kent, Comm. Lect. 39, p. 485 to 491, and notes 1 Ruth. Inst. B. 1, ch. 13, § 11 to 19.

2 See Pothier, Contract. de Vente, n. 234, 239, 242, 243; 1 Domat, B. 1, tit. 2, § 11; 2 Kent, Comm. Lect. 39, p. 484, 485, 490, 491, and note (c), (2d edition).

affect the general transactions of mankind.' And this in effect is the conclusion to which Pothier arrived, after a good deal of struggle, in adjusting the duties arising from moral obligation, with the necessary freedom and convenience of the common business of human life.2

§ 206. Mr. Chancellor Kent, in his learned Commentaries, after admitting the doctrine and authority of Lord Thurlow, in the case above stated, concludes with the following acute and practical reflections. "From this and other cases it would appear, that human laws are not so perfect as the dictates of conscience; and the sphere of morality is more enlarged than the limits of civil jurisdiction. There are many duties that belong to the class of imperfect obligations, which are binding on conscience, but which human laws do not and cannnot undertake directly to enforce. But when the aid of a Court of Equity is sought to carry into execution such a contract, then the principles of ethics have a more extensive sway. And a purchase, made with such a reservation of superior knowledge, would be of too sharp a character to be aided and forwarded in its execution by the powers of the Court of Chancery. It is a rule in Equity, that all the material facts must be known to both parties, to render the agreement fair and just in all its parts; and it is against all the principles of Equity, that one party, knowing a material ingredient in an agreement, should be permitted to suppress it, and still call for a specific performance." 3 The importance and value of the distinction here pointed out will be made more apparent, when we come to the consideration of the cases, in which Courts of Equity refuse to decree a specific performance of contracts, which they yet will not undertake to set aside.*

1 Fox v. Mackreth, 2 Bro. Ch, R. 420; Turner v. Harvey, 1 Jacob, Rep. 178.

2 Pothier de Vente, n. 234 to 242; Id. n. 295 to 299. Ante, § 194.

32 Kent, Coinm. Lect. 39, p. 499, 490, (2d edition); Parker v. Grant,

1 John. Ch. R. 630; Ellard v. Llandaff, 1 B. & Beatt. 250, 251.

* See 2 Story on Eq. Jurisp. § 693, § 769, 770.

N

§ 207. The true definition, then, of undue concealment, which amounts to a fraud in the sense of a Court of Equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances, which one party is under some legal or equitable obligation to communicate to the other; and which the latter has a right, not merely in foro conscientiæ, but juris et de jure, to know. Mr. Chancellor Kent has avowed a broader doctrine. "As a general rule," (says he)" each party is bound in every case to communicate to the other his knowledge of material facts, provided he knows the other to be ignorant of them, and they be not open and naked, or equally within the reach of his observation." This doctrine, in this latitude of expression, may perhaps be thought not strictly maintainable, or in conformity with that which is promulgated by Courts of Law or Equity. For many most material facts may be unknown to one party, and known to the other, and not equally accessible, or at the moment within the reach of both; and yet contracts, founded upon such ignorance on one side, and knowledge on the other, may be completely obligatory.2 Thus, if one party has actual knowledge of an event or fact

1 Fox v. Mackreth, 2 Bro. Ch. R. 420 ; 1 Fonbl. Eq. B. 1, ch. 3, § 4, note (n). Mr. Justice Buller, in Pearson v. Morgan, 2 Bro. Ch. R. 390, said, “ In cases where it [fraud] is a question of fact, it is always considered as a constructive fraud, where the party knows the truth and conceals it; and such constructive fraud always makes the party liable." But in that case the party, when applied to, misrepresented the fact, and concealed the truth; and the language must be limited to such circumstances. See Fox v. Mackreth, 2 Bro. Ch. R. 420; Turner v. Harvey, Jacob, R. 178.

2 The case of the unknown mine, already put, in the case of Fox v. Mackreth, 2 Bro. Ch. R. 420, seems to fall within this predicament; and in Turner v. Harvey, Jacob, R. 178, Lord Eldon said; "The Court in many cases has been in the habit of saying, that where partes deal for an estate, they may put each other at arm's length; the purchaser may use his own knowledge, and is not bound to give the vendor information of the value of the property. As in the case that has been mentioned, if an estate is offered for sale, and I treat for it, knowing that there is a mine under it, and the other party makes no inquiry, I am not bound to give him any information of it. He acts for himself, and exercises his own sense and knowledge. But a very little is sufficient to affect the application of the principle. If a single word is dropped, which tends to mislead the vendor, that principle will not be allowed to operate." See also ante, § 147 and 148.