MISREPRESENTATION. The statement made by a party that a thing is in fact in a particular way, when it is not so.
The misrepresentation must be both false and fraudulent in order to make the party making it responsible to the other for dam ages ; Otis v. Raymond, 3 Conn. 413; Emer son v. Brigham, 10 Mass. 197, 6 Am. Dec. 109; Metc. Yelv. 21 a, n. 1. And see 5 Maule & S. 380 ; 3 B. & P. 370; Wachsmuth v. Martini, 45 Ill. App. 244. Misrepresentation as to a material part of the consideration will avoid an executory contract ; Chatham Furnace Co. v. Moffatt, 147 Mass. 403, 18 N. E. 168, 9 Am. St. Rep. 727; Byrne v. Stewart, 124 Pa. 450, 17 Atl. 19 ; Angell v. Loomis, 97 Mich. 5, 55 N. W. 1008.
A 'misrepresentation, to constitute fraud, must be contrary to fact ; the party making it must know it to be so ; 2 Kent 471; 1 Story, Eq. Jur. ; 4 Price 135; Bradley v. Chase, 22 Me. 511; Dale v. Roosevelt, 5 Johns. Ch. (N. Y.) 182; Barnard v. Iron Co., 85 Tenn. 139, 2 S. W. 21; King v. In vestment Co., 76 Ia. 11, 39 N. W. 919 ; Stevens v. Allen, 51 Kan. 144, 32 Pac. 922; Childs v. Merrill, 63 Vt. 463, 22 Atl. 626, 14 L. R. A. 264; excluding cases of mere mistake; 5 Q. B. 804; 10 M. & W. 147 ; Hammett v. Emer son, 27 Me. 309_46 Am. Dec. 598 ; Lord v. Colley, 6 N. H. 99, 25 Am. Dec. 445; and in cluding cases where be falsely asserts a personal knowledge ; Lobdell v. Baker, 1 Metc. (Mass.) 193, 35 Am. Dec. 358 ; Ham matt v. Emerson, 27 Me. 309, 46 Am. Dec. 598 ; and one which was the inducement to the other party to enter into the contract; Concord Bank v. Gregg, 14 N. H. 331; 1 W. & M. 90, 342; English v. Benedict, 25 Miss. 167 ; Tindall v. Harkinson, 19 Ga. 448. See Sandford v. Handy, 23 Wend. (N. Y.) 260; Pollock, Cont. 542.
A contract is bad where a party is in duced to enter into it by the innocent mis statement of facts by another ; Mulvey v. King, 39 Ohio St. 491; Hunt v. Blanton, 89 Ind. 38; 2 Kent 471; but the misrepresenta tion must be the proximate and immediate cause of the transaction ; Adams v. Schiffer, 11 Colo. 15, 17 Pac. 21, 7 Am. St. Rep. 202 ;
and part of the same transaction ; Barnett v. Barnett, 83 Va. 504, 2 S. E. 733; and the party seeking relief must have relied upon it; Fowler v. McCann, 86 Wis. 427, 56 N. W. 1085. In an action for misrepresentation of facts, it is not always necessary to prove that it was made with a fraudulent intent and with guilty knowledge ; Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507; but an innocent misrepresentation can not be proved under a plea of fraud; 21 Can. S. C. R. 359.
To be material, the misrepresentation must be in respect to an ascertainable fact, as dis tinguished from a mere matter of opinion, judgment, probability, or expectation ; if it is vague and indefinite in its nature and terms, or is merely a loose, conjectural, or exaggerated statement, it is not a material misrepresentation ; Putman v. Bromwell, 73 Tex. 465, 11 S. W. 491; Finlayson v. Fin layson, 17 Or. 347, 21 Pac. 57, 3 L. R. A. 801, 11 Am. St. Rep. 836 ; Dawe v. Morris, 149 Mass. 188, 21 N. E. 313, 4 L. R. A. 158, 14 Am. St. Rep. 404.
A representation concerning a man's pri vate rights, though it may involve matters of law, is as a whole deemed to be a state ment of fact ; 13 Q. B. D. 363 ; as is a repre sentation that one has extraordinary and supernatural power in curing disease ; Jules v. State, 85 Md. 305, 36 Atl. 1027. And rep resentations from one bank to another that a business corporation is prosperous, well organized, doing a large business, and is a valued customer, and that an investigation has been made of its business and responsi bility by a bank officer, are also representa tions of fact and not of opinion ; Nevada Bank of San Francisco v. Bank, 59 Fed. 338. "A suppression of the truth may amount to a suggestion of falsehood;" Stewart v. Cattle Ranch Co., 128 U. S. 388, 9 Sup. Ct. 101, 32 L. Ed. 439 ; Nairn v. Ewalt, 51 Kan. 355, 32 Pac. 1110; and a false pretence need not be in regard to a fact which does in reality exist, but may be that a fact exists when it does not ; 14 Crim. L. Mag. 1.