Howard v. Gould , 28 Vt. 523 ( 1856 )

The opinion of the court was delivered by

Bennett, J.

It is a common principle that a false affirmation, not believed to be true, or a fraudulent concealment of a material fact, accompanied with damage, is actionable. If the affirmation is untrue in point of fact, and not believed to be true by the party making it, and is made for a fraudulent purpose, it is both a moral and a legal fraud; Taylor v. Ashton, 11 M. & W. 415 ; and in Polhill v. Watter, 3 B. & Adolphus 114, the court go the length of holding that if one makes a representation which he does not know or believe to be true, and it turns out to be false, and another person, acting upon the faith of it, is injured, he has his remedy against the person making the false affirmation. A false affirmation, not believed to be true, is fraudulent; and the question of the liability of the person making it must depend .upon the sincerity of his belief as to its truth, which will of course be for the jury to pass upon. In the case of Munroe v. Pritchett, 16 Alabama, 785, the court go the length of holding, that if the representations are made recklessly, the party not knowing them to be true, and for the purpose of inducing the other party to make a purchase, they are actionable if accompanied with damage. But we are not disposed, in this case, to lay the rule down in this language; but we think it safe to hold, that if the representations are false, and not believed to be true when made, and are made to induce a purchase, and a damage insues by means of them, they are fraudulent and actionable; and, to constitute a fraud, it is not necessary that a material fact should be directly misrepresented intentionally; but if a false impression is produced by words or acts, in order to mislead and obtain an undue advantage, it should be regarded as a case of manifest fraud.

When the defendant was inquired of if his horse had not got the glanders and he replied that he supposed the disease was the horse-distemper, this was, in effect, an affirmation that he did not believe the horse had the glanders, upon the principle that the affirmation of the one is the exclusion of the other.

From the facts found by the referee, and all the circumstances attending the case, I should have found no difficulty in inferring a belief in the mind of the defendant, that his horse had the glanders.. But this was question of fact. The referee does, however, find that, under the circumstances, the defendant was guilty of fraud by an improper suppression of facts. He bought the horse a very short time before the trade with the plaintiff for a diseased horse ; and was told by the person of whom he bought, that some said he had the horse-distemper, and some said he had the glanders though he did not pretend to know himself. But Atherton, a man skilled in the diseases of horses, upon an examination of-the horse, informed the defendant he believed the disease was the glanders.

When the defendant undertook to answer the inquiries put to Mm, he was bound to make a full disclosure. It is quite evident that this is a case, where, to say the least, there was a fraudulent suppression of material facts, which, if they had been disclosed, would probably have prevented the - trade. Though the plaintiff knew the horse was diseased, and had the means of examining Mm, yet he had not the same means of knowing the character of the disease as the defendant had; and in this respect, they cannot be said to stand upon an equality. As this case went to a referee, no question can arise in regard to the plaintiff’s right to recover, upon his present declaration, for a fraudulent suppression of facts.

The result must be, the judgment of the county court is reversed, and judgment on the report for the plaintiff.