148 



FRAUDULENT CONTRACTS. 



Representa- 

 tion known to 

 be untrue. 



Made before 

 a sale by 

 auction. 



Made by a 

 bidder at an 

 auction. 



Representa- 

 tion not 

 known to be 

 true. 



folly and weakness, or want of judgment, will not defeat a 

 contract, even in equity (/). 



But a vendor is unquestionably liable to an action of 

 deceit, if lie fraudulently misrepresents the quality of the 

 thing sold to be other than it is in some particulars, which 

 the buyer had not equal means with himself of know- 

 ing {m) ; and the mere possession of the means of know- 

 ledge by the vendee does not necessarily, under all circum- 

 stances, oust the vendor's liability for a false and fraudulent 

 representation {n). 



Certain misrepresentations about a horse on sale at a 

 repository were made by the defendant to the plaintiflF, 

 about four o'clock in the afternoon. On the morning of 

 the next day the defendant accompanied the plaintiff to 

 the auction yard, and pointed out the horse, saying, " That 

 is the horse." On his being put up to auction the plaintiff 

 bought him, and he turned out to be unserviceable. It 

 was held that the plaintiff was entitled to recover damages 

 from the defendant, as the jury were satisfied that the 

 defendant kneiv of the falseness of the representations, and 

 that the fact of the sale having been made by an auctioneer 

 made no difference (o). 



Where the purchaser and his friend were the only 

 bidders at an auction, the rest of the company being deterred 

 from bidding by the purchaser's stating to them that he 

 had a claim against, and had been ill-used by, the late 

 owner of the article, it was held that such purchaser did 

 not acquire any property against the vendor under such 

 sale (p). 



It signifies nothing whether a man represents a thing to 

 be different from what he knotvs it to be, or whether he 

 makes a representation which he does not knoiv at the time 

 to be true or false, if in point of fact it turns out to be 

 false (q) ; because there may undoubtedly be a fraudulent 

 representation, if made dishonestly, of that which the party 

 does not knoiv to be untrue, if he does not know it to be 

 true, or at least has not good grounds for believing it to be 

 true (r). 



(l) Milnes v. Cowley, 8 Price, 620 ; 

 Prebble v. Boyhurst, 1 Swanst. 329. 



(m) Per Lord Ellenborough, C.J., 

 Vernon v. Keys, 12 East, 637; 11 

 E. R. 499. 



(n) Ferrler v. Teaeoek, 2 F. & F. 

 717. 



(o) Sardell v. Spinks, 2 C. & K. 

 646. But see iTo^iins T. Tanqueray, 



23 L. J., C. P. 162, ante, p. 135. 



[p) Fuller T. Abrahams, 3 B. & 

 Bing. 116. 



(q) Per Lord Mansfield, C.J., 

 Schneider y. Heath, 3 Camp. 508 : 

 14 R. R. 825. 



(r) Per Parke, B., Taylor \. Ash- 

 ton, 11 M. & W. 413 ; and per Lord 

 Caima in Heese River Silver Mining 



