8 6 MISREPRESENTATION CONCEALMENT. 



representation will not invalidate the transaction if the horse 

 was a fit horse for a gig at the time he was soia/'(cO and costs 

 were consequently not allowed. 



If, however, a misrepresentation be made which gives 

 rise to a sale, and the seller believed the statements made to 

 be true, he will not be nable,(6) nor if they are about 

 matters connected with which the misled party exercised 

 his own judgment ;(c) but this does not apply where there 

 is essential error, or in the case of a Avarranty being given, 

 because the warranty does not merely give rise to the sale, 

 but is an absolute qualification of it ; (d) and where a mis- 

 representation is made Avhich is capable of two interpreta- 

 tions, it lies on the party impugning it to show that he 

 interpreted it in the sense m which it is false, and to show 

 that he has been deceived by it. (e) 



32. Concealment. — Provided there be a duty on a seller 

 to reveal material facts or defects of which he is cognisant, 

 concealment of them will amount to fraud.(/) This duty 

 exists whenever a seller in the knowledge of a latent material 

 defect, sells a horse for a full price without communicating 

 the fact to the buyer. (^) In regard to what amounts to 

 concealment Lord Curriehill observes:— " Mere disingenuous- 

 ness is not always of such a kind as is sufficient in law 

 to annul the transaction in which it may have been 

 practised, (/i) 



" In whatever manner a man may be deceived or misled, 

 yet, if he was not deceived by relying upon the friendship and 

 integrity of another, it is not a fraud. Fraud, therefore, 



(a) Geddes, cit. p. 317. 



{b) Broivnlie v. 3Iillcr, 1878, 5 R. 1076, 1092 ; Dunnct v. Mitchell, 1887, 15 E. 

 131 ; Benj. 432, et scq. 



(c) B. Pr. 14, and cases cited in note (/). 



id) § 37. 



(c) Smith V. Chadwicl; 1884, L.R. 9 App. Ca. 18/. 



(/) B.C. i. 263. 



{[/) §§ 9. 39. 



{h) Gillespie v. Russell, 1856, 18 D. 677, 686. 



