orously stated by the Supreme Court of Vermont in the following terms: "No rogue should enjoy his ill-gotten plunder for the simple reason that his victim is by chance a fool." 806 So a distinguished text-writer remarks: "It has been said that a false representation, to impose liability on its maker, must have been calculated to impose on a person of ordinary sagacity. But this limitation cannot be sustained, as persons of less than ordinary sagacity are as much entitled to be sheltered from swindlers as are persons of greater shrewdness. Hence, if a party is really imposed upon, and has not in fact negligently exposed himself to imposition, he can obtain redress if damaged by fraudulent representations whose unreality a person of greater intelligence would have promptly discovered." 807 "It is well known that many good people, and people of average or greater intelligence, are sometimes duped and misled by the skill, cleverness, and artifices of those who are adepts in the matter of deceiving their fellow-men; and courts should not throw about schemers of this kind a protection that will tend to encourage the practice of their arts. It is not the function of courts to make contracts for parties, or to relieve them from the effects of bad bargains. But where the simplicity and credulity of people are taken advantage of by the shrewdness, overreaching, and misrepresentation of those with whom they are dealing, and they are thereby induced to do unwittingly something the effect of which they did not intend, foresee, or comprehend, and which, if permitted to culminate, would be shocking to equity and good conscience, we think a court of equity may with propriety interpose." 808 Many other such declarations are to be found in the reports, as, that it is as much actionable fraud willfully to de Rep. 300; McDowell v. Commonwealth, 136 Ky. 8, 123 S. W. 313; Banaghan v. Malaney, 200 Mass. 46, 85 N. E. 839, 19 L. R. A. (N. S.) 871, 128 Am. St. Rep. 378; Crips v. Towsley, 73 Mich. 395, 41 N. W. 332; King v. Cohorn, 6 Yerg. (Tenn.) 75, 27 Am. Dec. 455; Regina v. Woolley, 1 Den. C. C. 559. 806 Chamberlin v. Fuller, 59 Vt. 247, 9 Atl. 832. 807 1 Wharton, Contracts, § 245. 808 Stone v. Moody, 41 Wash. 680, 84 Pac. 617, 85 Pac. 346, 5 L. R. A. (N. S.) 799. ceive a credulous person with an improbable story as to deceive a cautious person with a plausible one; 809 that the law does not allow a shrewd and designing person to hide his evil-mindedness behind the ignorance of his victim; 810 that important business transactions between a shrewd and active business man and ignorant persons poorly equipped to trade with him will be closely scrutinized; 811 and that, in an action for false representations, the impression made on the mind of the person deceived is the subject of inquiry, and he is or is not justified in acting on such representations as they may have impressed him, and not as they may have impressed a disinterested bystander.812 So, the court in Florida rules that, where the circumstances clearly show the inequality of the contracting parties, by reason of inexperience or lack of information as compared with the business qualities and information of the other party, specific performance of a contract, based on manifestly inadequate consideration, will not be granted.818 And elsewhere it is said that a treaty respecting an important interest, conducted by two persons of unequal powers,-one with a naturally unsound judgment, rendered still weaker by a long-continued habit of intoxication, and the other enterprising, keen, and sagacious in business, the weaker mind trusting the stronger, that influence increased by pecuniary embarrassment on the one side and pecuniary power on the other, and resulting in a contract exhibiting great inadequacy of consideration,-presents a claim to equitable relief.814 Applying these principles to the facts of actual cases, we find the courts granting relief to persons deceived and injured by false representations, although they did not exhibit ordinary care and prudence in the matter, where, as against superior intelligence or capacity, the victim was a woman, ignorant or entirely inexperienced in business af 809 Prescott v. Brown, 30 Okl. 428, 120 Pac. 991. 810 Robinson v. Reinhart, 137 Ind. 674, 36 N. E. 519. fairs,815 or an infant, tricked by reason of his youth and inexperience,816 or an aged, weak, and illiterate person,s or a person unfamiliar with business and of less than average mental capacity,818 or a person unable to read or speak the English language,819 or slow-witted and understanding English imperfectly,820 or deaf and unable to read and write,821 or old and with defective eyesight,822 or a deafmute and unable to communicate with others except by the sign language and of feeble intellect and susceptible to the influence and the arts of others,823 or one whose intelligence and power of self-protection have become impaired through his habits of frequent intoxication, 824 or simply a person having little or no experience in the particular kind of transactions to which the contract relates.825 So, representations made by a lawyer to a person who has no knowledge of the law or experience in it may furnish ground for relief, notwithstanding a want of ordinary prudence, particularly where they relate to matters of law,828 or even where they relate to mere matters of business, if the party duped is a client and accustomed to trust his attorney and rely on his statements. 827 And a deed of lands for less than their real value, given to one who was greatly the superior of the grantor in intelligence and who, sustaining confidential relations to him, played on his unwarranted fears of 815 Cannon v. Gilmer, 135 Ala. 302, 33 South. 659; Yarbrough v. Harris, 168 Ala. 332, 52 South, 916, Ann. Cas. 1912A, 702; Grand Rapids, G. H. & M. Ry. Co. v. Stevens, 143 Mich. 646, 107 N. W. 436; Stewart v. Hubbard, 56 N. C. 186; Varner v. Carson, 59 Tex. 303; Schaeffer v. Blanc (Tex. Civ. App.) 87 S. W. 745. 816 Gray v. Lessington, 15 N. Y. Super. Ct. 257. 817 Hunt v. Moore, 2 Pa. 105. 818 Sears v. Hicklin, 13 Colo. 143, 21 Pac. 1022. 819 Adolph v. Minneapolis & P. Ry. Co., 58 Minn. 178, 59 N. W. 959; Bonelli v. Burton, 61 Or. 429, 123 Pac. 37. 820 Blampey v. Pike, 155 Mich. 384, 119 N. W. 576. 825 Whitney v. Richards, 17 Utah, 226, 53 Pac. 1122; Quimby v. Clock, 44 App. Div. 616, 60 N. Y. Supp. 253. 826 Bridgewater v. Byassee, 29 Ky. Law Rep. 377, 93 S. W. 35 827 Manley v. Felty, 146 Ind. 194, 45 N. E. 74. losing the land by foreclosure, will be set aside. 828 Nor must we omit to mention the case of a man who tamped a charge of blasting powder with an iron bar, and, having survived the result, brought suit for misrepresentations, basing his claim on a statement by the manufacturers and the dealer who sold it to him that the powder was "safe," and was allowed to go to the jury with the question of fact. 829 § 126. Statements Palpably False, Incredible, or Impossible. It has sometimes been held that an action for deceit or a claim for rescission could not be predicated upon. misrepresentations which were so incredible, or so palpably false or impossible, that they could not be assumed to have deceived a person having the least measure of intelligence which would enable him to contract at all.830 Thus, it is said that no action of fraud lies on representations made on a sale of eyeglasses, to the effect that a chemical process imparted a quality to the glass which made it fit the eye indefinitely, so that the glasses, once fitted, would always adapt themselves to the eye, such statement being contrary to natural laws.831 So it has been ruled that one who is invited to subscribe for stock in a corporation is bound to bring to bear upon the proposition a reasonable measure of care and good judgment, so that he cannot complain of having been deceived by statements which were preposterous or incredible on their face. 832 But the better rule, and one which is in line with the modern doctrine explained in the preceding section, is that the improbability or incredibility of a misrepresentation is ordinarily only relevant on the question of its acceptance as true by the other party and its influence on his conduct (which is a question of fact for the jury), and never of itself precludes a right of action.833 828 Smith v. Firth, 53 App. Div. 369, 65 N. Y. Supp. 1096. 829 Marsh v. Usk Hardware Co., 73 Wash. 543, 132 Pac. 241. 830 Leonard v. Southern Power Co., 155 N. C. 10, 70 S. E. 1061. And see Peterson v. Hoftiezer, 35 S. D. 101, 150 N. W. 934. 831 H. Hirschberg Optical Co. v. Michaelson, 1 Neb. (Unof.) 137, 95 N. W. 461. 832 New Brunswick & Canada Ry. v. Muggeridge, 1 Dr. & Sm. 363; Central Ry. Co. of Venezuela v. Kisch, L. R. 2 H. L. App. 99. 833 King v. Livingston Mfg. Co., 180 Ala. 118, 60 South. 143; State Life Ins. Co. v. Johnson, 73 Kan. 567, 85 Pac. 597. Thus, in a case in Vermont, the article sold was a perpetual-motion machine, the motion being produced by a concealed clock-work. The buyer, on discovering the cheat, sued for the recovery of his money, and the suit was defended on the ground that the buyer was bound, as matter of common sense, to know that the thing was a fraud. But the court sustained a recovery, saying that "the law will afford relief even to the simple and credulous who have been duped by art and falsehood." 884 In another case, a skilled mechanic contracted to put a tin roof on a building which should last twenty years without leaking. It was held that he could not escape liability on the ground that his representations were incapable of being made good. The court conceded that no action would lie upon a representation "obviously ridiculous and impracticable," but said that the representation here in question was "not manifestly absurd and essentially impracticable in the nature of things," and further that the injured party had a right to rely on the representations of the defendant as relating to "matters peculiarly within his knowledge, pertaining to his art or calling.' Again, where a person who was a promoter and director of a corporation and who knew perfectly well that it was a worthless concern, and would never earn or pay any dividends, gave a written guaranty that shareholders would receive a minimum annual dividend of 33 per cent, and this was done to induce people to buy its stock, a person who relied on this representation and invested his money and lost it was held entitled to maintain an action for deceit.830 So, a representation that a worthless medicine is a sure cure for cholera is a misrepresentation of fact and is actionable.887 And a "clairvoyant" who by false and fraudulent representations, knowingly and with intent to defraud, induced a woman to place in his care money which he did not return, was held guilty of false pretenses.838 99 835 834 Kendall v. Wilson, 41 Vt. 567. 835 McGar v. Williams, 26 Ala. 469, 62 Am. Dec. 739. 836 Gerhard v. Bates, 2 El. & Bl. 490. 887 McDonald v. Smith, 139 Mich. 211, 102 N. W. 668. 838 Clarke v. People, 53 Colo. 214, 125 Pac. 113. |