FRATJDULENT CONTRACTS. 



147 



Thus then there are cases of two sorts, in which, though ^ visible de- 

 a man is deceived, he can maintain no action. The first ^^\ ^^\ '^ 

 class of cases is, where the affirmation is that the thing tion. 

 sold has not a defect which is a visibie one ; there the 

 imposition and the fraudulent intent are admitted, but 

 there is no tort. The second kind of cases is where the 

 affirmation is (what is called in some of the books) a nude 

 assertion ; such as the party deceived may exercise his own 

 judgment upon. For where it is a mere matter of opinion, 

 he ought to make inquiries into the truth of the assertion, 

 and it becomes his own fault from laches if he is 

 deceived {i). 



Assertions of this sort are what is called " dealing talk," Dealing talk. 

 such as is used more or less by shopkeepers and dealers of 

 every description. For instance, a horsedealer tells his 

 customer that a horse worth 40/. is " worth a hundred 

 guineas," or that a bad, clumsy goer, has " fine action," or 

 is a "clever little horse." And a person who allows him- 

 self to be imposed upon by such assertions has no remedy 

 against the vendor. Thus it appeared in the following case 

 that J. S., who had a term for years, affirmed to J. D., that 

 the term was worth 150/. to be sold, upon which J. D. gave 

 150/. and afterwards could not get more than 100/. for it, 

 and then brought his action. It was alleged that this 

 matter did not prove any fraud, for it was only a naked 

 assertion that the term was worth so much, and it was the 

 plaintiff's folly to give credit to such assertion. But if the 

 defendant had warranted the term to be of such a value to 

 be sold, and upon that the plaintiff had bought it, it would 

 then have been otherwise (y). 



The Court will not set aside a deed on the ground of 

 previous or collateral fraud, unless the party is deceived 

 with regard to the execution of the deed itself, for the 

 representation must be as to matters material, and not 

 collateral only, to the contract {h). 



If i\iQ folly of a contract be extremely gross, the circum- 

 stance will tend, if there be other facts in corroboration, to 

 establish a case for relief on the ground oi fraud; but mere 



Collateral 

 fraud does 

 not avoid a 



A foolish 

 bargain. 



(i) 1 Eol. Abr. 101; Yelv. 20; 1 

 Sid. 146 ; Cro. Jac. 386 ; Bailey ¥. 

 Merrell, 3 Bulst. 95 ; and per 

 Grose, J., FasUy v. Freeman, 3 T. E. 

 54. 



(j) Harvey T. Young, Yelv. 20 ; 

 flited per Grose, J., FasUy v. Free- 



man, 3T.E. 55; 1 R. E. 634. 



[k) Feret v. Bill, 23 L. J., C. P. 

 185 ; Canham v. Barry, 24 L. J., 

 C. P. 100. See, too, per Blackburn, 

 J., S. V. Saddlers Co., 32 L. J., 

 Q. B. 337, 343. 



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