Court of Pennsylvania, he criticised the modern doctrine with his accustomed keenness. He said, "A positive assertion of what he [the vendor] knew not to be true or false, is as unconscionable, and might be as injurious, as an intentional fraud; and what is the vendee's remedy where the scienter cannot be proved? The fallacy of the question is in assuming that he ought to have any remedy at all. The relation of buyer and seller, unlike that of trustee and cestui que trust, attorney and client, or guardian and ward, is not a confidential one; and if the buyer, instead of exacting an explicit warranty, chooses to rely on the bare opinion of one who knows no more about the matter than he does himself, he has himself to blame for it. If he will buy on the seller's responsibility, let him evince it by demanding the proper security; else let him be taken to have bought on his own. He who is so simple as to contract without a specification of the terms, is not a fit subject of judicial guardianship. Reposing no confidence in each other, and dealing at arm's length, no more should be required of parties to a sale than to use no falsehood; and to require more of them, would put a stop to commerce itself in driving every one out of it by the terrors of endless litigation. Yet such would be the tendency of the civil-law scion which the judges have been laboring to engraft on the common-law stock."

Looking at the question in the light of principle, we think it apparent, that to hold that a written contract can be avoided on the ground of oral misrepresentations, in the absence of fraud or warranty, is a dangerous innovation on the ordinary rules of evidence, and which in other cases courts are inclined to apply more strictly, rather than to relax them. Lord Eldon doubted the wisdom of the decision in Pasley v. Freeman, and that case made it necessary to enact an additional section to the Statute of Frauds. In the analogous case of a guaranty, the concealment of material facts will not vitiate it, unless fraudulent.1

We have quoted the conflicting assertions of Lord Abinger and Baron Parke, in regard to the applicability to cases like Cornfoot v. Fowke, of the doctrine of representations in contracts of insurance; and it is an interesting question whether the law of insurance is founded on the general principle contended for by

1 Hamilton v. Watson, 12 Cl. & Fin. 109; North British Insurance Company v. Lloyd, 10 Exch. 523; Deshon v. Dyer, 4 Allen, 128.

Lord Abinger, and applicable to all contracts, or upon another and different principle, wholly distinguishable from the subject we are discussing, although the distinction may be narrow and somewhat technical. We think this latter is the case, and that Baron Parke's view of the peculiarity of the law of insurance was correct. The distinction turns upon the elementary principle, that in all contracts it is essential that there should be a meeting of minds; that the parties should be contracting about the same subjectmatter. "Where," says Mr. Justice Metcalf, "a mistake occurs respecting the identity of the subject of the agreement, assent is not given, and the contract of course is void; as where a contract was for lime in casks, and the casks were found to contain sand and stone." 1 Cum in corpore dissentitur, apparet nullam esse acceptionem.

Now, in insurance, the representations are not admitted for the purpose of contradicting the written contract, but to show the subject-matter to which it was intended to apply. In ordinary language, it is somewhat loosely said, that a ship or building is insured; but, speaking more exactly, the subject of the contract is a certain risk, and facts in the knowledge of the assured, but not of the underwriter, may make the risk about which the former is negotiating as distinct from the one in the mind of the latter, as Whiteacre is distinct from Blackacre. And thus the doctrine was early explained by Lord Mansfield, in the leading case of Curter v. Boehm.2 "If," said that great magistrate, "a concealment happens, without any fraudulent intention, by mistake of the principal or his agent, still the policy is void, because the risk which is run is not that which the underwriter intended." And so in the recent case of Kimball v. Etna Insurance Company, Mr. Justice Gray, in delivering the judgment of the Supreme Court of Massachusetts, said, "Representations of fact existing at the time of the execution of the policy need not be inserted in it; for they are not necessary parts of it, but, as is sometimes said, collateral to it. They are its foundation; and if the foundation does not exist, the superstructure does not arise. Falsehood in such repre

1 Met. Con. 31. This is well illustrated by some recent Massachusetts cases: Chapman v. Cole, 12 Gray, 141; Foss v. Richardson, 15 Gray, 303; Gardner v. Lane, 9 Allen, 492, and 12 Allen, 39.

2 1 W. Bl. 594; s.c. 3 Burr. 1909.

* 9 Allen, 540.

sentations is not shown to vary or add to the contract, or to terminate a contract which has once been made; but to show that no contract has ever existed." In this case, in which all the former cases are carefully reviewed, the doctrine established by them that the evidence thus admitted must be confined to past facts, and cannot be extended to promissory representations in regard to the future, was reaffirmed, in opposition to the opinions of such textwriters as Arnould, Duer, and Phillips. But if the views of Lord Abinger, in Cornfoot v. Fowke, are correct, we do not see why any such distinction was taken, for in either case the underwriter would be deceived. Besides, the case of insurance is a contract uberrimæ fidei, which has always been construed by courts in favor of the underwriters. We do not think, therefore, that the doctrine of representations in contracts of insurance, has any general applicability to other contracts, where there is no misunderstanding about the res or subject-matter itself. And if this be so, one of the strongest arguments in favor of holding that a contract can be avoided by innocent misrepresentations, and one which has caused more confusion and misapprehension than almost any thing else, is removed.

The doctrine we are censuring is one derived from the civil and continental law, and has found its chief supporters among those judges and text-writers, whose fondness for foreign codes has already done much mischief in the consequent attempts made by them to apply their maxims to our system of jurisprudence; and among other judges who have been regularly trained equity lawyers, and rather inclined to carry equitable principles into the decision of common-law cases. A careful examination of cases before the time of Lord Denman, will, we think, show that the decisions and dicta, which have often been relied upon in support of the doctrine, have almost invariably been cases where judges have been commenting upon what would amount to fraud (as positive assertions as of one's own knowledge, about facts concerning which nothing is known, concealment of the truth for a fraudulent purpose, where one party knows the other is buying under mistake, and other similar instances of bad faith); or else they have been cases of warranty, expressed or implied. With regard to the first class, the judgment of Baron Alderson, in Moens v. Heyworth, heretofore quoted, is an excellent illustra

1 See the remarks of Chancellor Kent, 2 Kent, Com. (6th ed.) 487, note.

tion of what may amount to mala fides, and the cases of warranty stand on distinct ground. We have failed to find that it has ever been settled law in England or America, that false representations, in the absence of fraud or warranty, will avoid a contract, where the subject of the contract itself has not been a matter of dispute.1

3. This brings us to the third point involved in the decision of Cornfoot v. Fowke, and the ground upon which the case has been attacked with the most confidence and plausibility; and that is, the fact that the principal knew of the existence of the nuisance in question, when his agent in good faith said there was nothing objectionable to the house. Since the decision of Lord Holt, in Hern v. Nichols,2 it has not been doubted that a principal is responsible for the fraud and bad faith of his agent, in acting for him, although there may be doubt whether this was the rule of the old law,3 and Lord Holt may have derived the principle from the civil law. The principle itself was recognized by Baron Parke, in his judgment in Cornfoot v. Fowke, but he justly said that it was inapplicable, because as that case presented itself to the court there was no bad faith. But Chancellor Kent,5 Lord Campbell, in Wilde v. Gibson, as before cited, and perhaps Lord St. Leonards, in Glasgow Exchange Com

1 It is undoubtedly true, that equity will relieve a person from a contract, in making which he has been misled by innocent representations of the other party, in many cases where the Common Law is powerless to do so. But from not making the proper distinction between suspicious circumstances tending to show bad faith, and representations which may be wrong, but are made in entire good faith, and likewise from not always remembering that a Court of Chancery will often refuse to exercise its discretionary power of enforcing the specific performance of a contract, if the defendant was misled, although the validity of the contract itself is unquestioned, the cases and text-writers on the subject do not lay down any very satisfactory rule; and we apprehend that the doctrine of equity does not differ from the rule of the Common Law so much as has been supposed. 1 Story on Eq. §§ 195 et seq.; Smith's Manual of Eq. (9th ed.) 58 et seq.; Neville v. Wilkinson, 1 Bro. C. C. 546; Evans v. Bicknell, 6 Ves. 182; Ainslie v. Medlicot, 9 Ves. 21; Atwood v. Small, 6 Cl. & Fin. 232; Hough v. Richardson, 3 Story, 659; Doggett v. Emerson, 3 Story, 700; Tyler v. Black, 13 How. 230; 2 Kent, Com. (10th ed.) 484, 485, and notes.

2 1 Salk. 289.

3 "If my servant sell false stuff, an action on the case does not lie against me, unless he sold it through my covin or by my command." Bro. Abr. Action sur le Case, pl. 8, citing Year Book, 9 H. 6, 53b. But see Com. Dig. Action upon the Case for a Deceit, B.; Chitty's note to 1 Bl. Com. 431.

"Procuratoris scientiam et dolum nocere debere domino, neque Pomponius dubitat, neque nos dubitamus." Dig. 14, 4, 5.

5 2 Kent, Com. (6th ed.) 621, note.

61 H. L. Cas. 615.

pany v. Drew, seem to think that the knowledge of the principal would be knowledge of the agent, so far as to avoid the contract. If so, as we have before stated the proposition, the principal would be affected by the act of his agent, in the absence of all bad faith, to the same extent that he would be if it was marked by the greatest turpitude.

Now the gist of an action for deceit, is the intention to deceive, and generally without such intent, a false representation cannot be pleaded in answer to actions ex contractu, where there is no warranty; that is to say, the same evidence is required to avoid a contract under such circumstances as to maintain an action for the false representation. If, however, a contract made by an agent can be avoided where one made by the principal could not be, two facts entirely innocent in themselves are united for the purpose of constituting a fraud, a thing of itself somewhat anomalous in our law, and the distinction, which has no existence in the case of representations made by the principal himself, between a defence to an action on the contract, and the maintenance of an action on the representations, is established in the case of representations made by the agent.

If, therefore, in this very case, two persons had agreed to buy leases of adjoining houses, affected by the same nuisance, and one had signed the agreement which Fowke did, and on which he was sued, while the other's lease was at once assigned to him, and he paid the purchase-money, the one has his remedy by refusing to perform his contract, while the other, the contract having been executed, although misled to the same extent, and by the same representation, has no remedy.

It may be said, that, by suing on the agreement, the principal availed himself of the act of his agent; but we think this is assuming too much; he may have been, and probably was, entirely ignorant of the representation made by his agent, and by bringing his action he ratifies the contract, which act does not necessarily include rendering himself responsible for every act of his agent outside his contract. He has a right to presume that all the facts binding upon or affecting him, are included in and made a part of the contract entered into. If the contract had been a simple one of sale, the principal could have enforced it,

1 2 Macq. 145, 146.