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examining the subject is chargeable with knowledge of those circumstances which are apparent to persons of ordinary observation. Thus, where the property sold was a mill and its machinery, and the purchaser examined the premises and could and did see that the mill was in a decayed condition, he cannot rescind on the ground of false representations as to the property being in good repair simply because he was not an experienced miller.774 But the converse of this proposition is also true. That is, if the person investigating is thoroughly familiar or experienced in the particular business or process concerned, he is chargeable with knowledge of all that his trained observation should have taught him.775 The mere fact that a contract is made subject to investigation by one party does not relieve the other from the consequences of fraudulent representations, unless the means of knowledge are at hand and equally available to both parties.776 But where one signs a written lease containing a covenant that he has examined and knows the condition of the premises and has received the same in good order and repair, he will not be entitled to rescind the lease on account of false representations as to the condition of the property made before the execution of the lease. An examination of a sample may be equally efficacious in charging the party with knowledge, and precluding relief on the ground of false representations, if the sample was a fair specimen of the article contracted for.778

§ 122. Investigation Prevented or Thwarted by Other Party. While many of the cases, as stated in a preceding section, maintain the rule that a person who enters into a contract in implicit reliance on false representations made to him, neglecting to test their accuracy by an investigation or examination which he has a full and free opportunity to make, is chargeable with such negligence as should preclude his claim to relief, yet this rule does not

774 Newton v. Levy, 26 Ky. Law Rep. 476, 82 S. W. 259.

775 Cole v. Smith, 26 Colo. 506, 58 Pac. 1086; Grauel v. Wolfe, 185 Pa. 83, 39 Atl. 819.

776 Clark v. Harmer, 9 App. D. C. 1.

777 Jorgeson v. Hock, 234 Ill. 631, 85 N. E. 296.

778 Sands v. Taylor, 5 Johns. (N. Y.) 395, 4 Am. Dec. 374.

apply in cases where he is dissuaded or prevented from making such an investigation by the artifice, fraud, or misrepresentations of the other party to the contract.779 For instance, where the defrauded party manifested a disposition to consult his attorney about the validity or effect of certain papers, before concluding the bargain, but was persuaded not to do so by the other party's assurance that it was entirely unnecessary, his reliance on such assurance will not prevent him from obtaining proper relief.780 So, where the purchaser of property said that he wanted to ascertain whether a cellar on the premises was dry before signing the contract, but the vendor falsely told him that the cellar was dry, that he never had had any trouble with it, and that he might rely on his word, it was held that the purchaser had a right to forego the proposed investigation in reliance on the vendor's statement.781 And the same rule applies where an investigation was prevented by the other party's urging the necessity for immediate action.782 So, in an action for fraud inducing the plaintiff to purchase real estate, the evidence showed that the defendant misrepresented the quantity of timber thereon, that plaintiff's agent inspected a part of the land, but did not inspect the balance, because the defendant stated that the timber on

779 Tooker v. Alston, 159 Fed. 599, 86 C. C. A. 425, 16 L. R. A. (N. S.) 818; Strand v. Griffith, 97 Fed. 854, 38 C. C. A. 444; Miller v. John, 111 Ill. App. 56; Riley v. Bell, 120 Iowa, 618, 95 N. W. 170; Evans v. Palmer, 137 Iowa, 425, 114 N. W. 912; Thompson v. Randall, 28 Ky. Law Rep. 716, 90 S. W. 251; Parker v. Moulton, 114 Mass. 99, 19 Am. Rep. 315; Starkweather v. Benjamin, 32 Mich. 305; Leicher v. Keeney, 98 Mo. App. 394, 72 S. W. 145; Shearer v. Hill, 125 Mo. App. 375, 102 S. W. 673; Dresher v. Becker, 88 Neb. 619, 130 N. W. 275; May v. Loomis, 140 N. C. 350, 52 S. E. 728; Crompton v. Beedle, 83 Vt. 287, 75 Atl. 331, 30 L. R. A. (N. S.) 748, Ann. Cas. 1912A, 399; McMillen v. Hillman, 66 Wash. 27, 118 Pac. 903. As to concealment of material facts, coupled with efforts to prevent discovery, see, supra, § 62. On the general rule, see, further, Everist v. Drake, 26 Colo. App. 273, 143 Pac. 811; Barnes v. Barnett, 188 Ill. App. 32; Hossier Realty Co. v. Caddo Cotton Oil Co., 136 La. 328, 67 South. 20.

780 Rollins v. Quimby, 200 Mass. 162, 86 N. E. 350; Dashiel v. Harshman, 113 Iowa, 283, 85 N. W. 85.

781 Frank v. Bradley & Currier Co., 42 App. Div. 178, 58 N. Y. Supp. 1032.

782 Miller v. John, 111 Ill. App. 56.

the lands not viewed was better than the portion they were viewing, and that further inspection was omitted in order to enable the parties to return to the station in time to take the only train home that day. It was held that the plaintiff was justified in relying on defendant's representations.783 Again, if the seller makes any statement intended to distract the buyer's attention from the real facts, and which accomplishes that result, it may complete the fraud and excuse the failure to make an investigation.784 A suggestion made during the negotiation for a purchase of property, and coupled with false representations by the vendor, that the purchaser should go himself and look at the land, as their judgment might not agree, and if he was not satisfied with the land, the vendor would pay his expenses, but if satisfied, the purchaser should pay them, impliedly asserts that the vendor himself had exercised an intelligent judgment, and, in the absence of any intimation of any possible doubt of the facts being as represented, would be likely to dissuade the purchaser from going and confirm his belief in the representations, and hence cannot operate to shield the vendor from the consequences of his fraud.'

785

Even when a party to a contract does make an independent investigation of the subject-matter, he may still have relief for fraud, if such investigation was thwarted, perverted, or rendered illusory or misleading by the artifice of the other party. In order to have the effect of precluding relief, "the examination must be an untrammelled one, and this is not the case where fraud or concealment is practised in the course of it, or misrepresentations made which would themselves afford occasion for relief. An examination perverted in this way by the act of the vendor is the same as no examination at all." 786 This principle applies where the investigation is rendered illusory and deceptive by the bribery of the agent to whom it was intrusted.787 An instructive case on this aspect of the question was tried in

783 Mannel v. Shafer, 135 Wis. 241, 115 N. W. 801. 784 Files v. Rankin, 153 Fed. 537, 82 C. C. A. 491. 785 Webster v. Bailey, 31 Mich. 36.

786 Mather v. Barnes (C. C.) 146 Fed. 1000.

787 Alger v. Keith, 105 Fed. 105, 44 C. C. A. 371.

the federal courts, and involved the sale of a silver mine, the alleged false representation being as to the richness and value of the ore. The purchaser sent an experienced mining engineer to inspect the property, and he took samples of the ore for a test assay. The test was made in the seller's mill and in his presence and with his assistance, and he had an opportunity to inject native silver into the sample without being observed, and it was alleged that he had done so. The test exactly confirmed the seller's representation as to the value of the ore, but after the sale, no ore was found in the mine that would assay more than onefifth as much. A rescission of the sale was decreed. Lurton, J., said: "If the party making false statements as to a matter conjectural in its character, and therefore relating to a matter of opinion, actively intervenes to prevent investigation and the discovery of the truth, and such intervention be effective in the concealment of the facts and in the deception of the buyer, a clear case of operative fraud is made out. In every such case, immunity will not be extended to false expressions of opinion upon the ground of 'puffing' or 'trade talk,' if it appears that the vendor has, by his conduct, prevented investigation and induced reliance upon the statements of the seller. In such a case, the subsequent conduct of the seller in actively preventing the buyer from the formation of an independent opinion so connects itself with the original misrepresentation as to become a part and parcel of the false statement, and amounts in law to the false affirmation of a fact. A false representation may, and most often does, consist in language alone, expressed or written; but it may also consist in conduct alone or external acts. * The gravamen of the alleged fraud lies in the allegation that when the complainants undertook to examine this property, and form an independent judgment as to its value, through the active and willful intervention of defendants, their samples were rendered untrustworthy by the secret admixture of silver in a form in which it did not exist in this mine; that the purpose was to give to these samples, otherwise representative of the average value of the ore in sight, a false and fictitious value, which would confirm the untrue statements

the lands not viewed was better than the portion they were viewing, and that further inspection was omitted in order to enable the parties to return to the station in time to take the only train home that day. It was held that the plaintiff was justified in relying on defendant's representations.783 Again, if the seller makes any statement intended to distract the buyer's attention from the real facts, and which accomplishes that result, it may complete the fraud and excuse the failure to make an investigation.784 A suggestion made during the negotiation for a purchase of property, and coupled with false representations by the vendor, that the purchaser should go himself and look at the land, as their judgment might not agree, and if he was not satisfied with the land, the vendor would pay his expenses, but if satisfied, the purchaser should pay them, impliedly asserts that the vendor himself had exercised an intelligent judgment, and, in the absence of any intimation of any possible doubt of the facts being as represented, would be likely to dissuade the purchaser from going and confirm his belief in the representations, and hence cannot operate to shield the vendor from the consequences of his fraud.785

Even when a party to a contract does make an independent investigation of the subject-matter, he may still have relief for fraud, if such investigation was thwarted, perverted, or rendered illusory or misleading by the artifice of the other party. In order to have the effect of precluding relief, "the examination must be an untrammelled one, and this is not the case where fraud or concealment is practised in the course of it, or misrepresentations made which would themselves afford occasion for relief. An examination perverted in this way by the act of the vendor is the same as no examination at all." 786 This principle applies where the investigation is rendered illusory and deceptive by the bribery of the agent to whom it was intrusted.787 An instructive case on this aspect of the question was tried in

783 Mannel v. Shafer, 135 Wis. 241, 115 N. W. 801.
784 Files v. Rankin, 153 Fed. 537, 82 C. C. A. 491.
785 Webster v. Bailey, 31 Mich. 36.

786 Mather v. Barnes (C. C.) 146 Fed. 1000.
787 Alger v. Keith, 105 Fed. 105, 44 C. C. A. 371.

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