ignorant of the fact; though a sale of such paper would not ordinarily require disclosure of facts merely affecting its market value.2

A

The New Jersey case just cited is a strong illustration. bought stock in a bank of B, its treasurer, who had every two or three months made sworn, but false and fraudulent statements to the comptroller of the currency, which had been published in newspapers; the statements indicating that the bank was in a flourishing condition, which was grossly untrue. A, who had seen the statements, supposed the bank to be sound, and bought upon that footing, B making no representations to him. It was held that the sale was fraudulent, and that A might rescind it.

The case is put by the court as one of trust and confidence on the part of A, but it was not such in any technical sense.3 And then the court says that the case was as if A had said to B, I know what declaration you have made public touching the facts on which depends the value of this stock. Your means of information are such that it is reasonable to believe those declarations. I have no other available means of ascertaining the bank's condition; I believe your declarations, and therefore offer you this price for your stock.' And the court now significantly says that although no such words were

1 Brown v. Montgomery, 20 N. Y. 287. See Kean v. James, 39 N. J. Eq. 527, referring to these and other cases. 2 People's Bank v. Bogart, 81 N. Y. 101.

8 All the classes of cases above considered would perhaps in the same general sense be cases of trust and confidence; and so they have been treated. See Kean v. James, supra, referring to 2 Pomeroy, Equity, § 902. That may be well enough with regard to marine insurance, a contract standing upon uberrima fides; but the same cannot be said of fire, life, or accident insurance, or of the other classes of cases

supra. It may indeed be said that in the particular case there is trust or confidence; and surely there is sometimes, as where A throws himself upon the honor and integrity of B in a transaction, and B accepts the duty implied. See ante, p. 491; also Worley v. Moore, 77 Ind. 567; Kenner v. Harding, 85 Ill. 264. But in other cases it is only putting the difficulty a step further back, and then making a fiction of it, to speak of trust or confidence. The true ground is the immediate and certain one, that the silence operates, under the circumstances, as an active agency, like a representation.

spoken, yet this 'represents the mental processes of the buyer before making the offer and . . . the seller's own mind on receiving the offer.' Silence was equivalent in conscience to reassertion' of the published statements.

The silence, it will be seen, is compared here and elsewhere to representation; still it is important to emphasize the fact that it is only comparison. Quod simile non est idem.' There are cases of great authority which directly show that liability does not rest upon the ground of representation. Thus it has recently been laid down in the House of Lords that a person who knows that a bank is relying upon his forged signature to a bill of exchange cannot lie by and not disclose the fact until he sees that the position of the bank is altered for the worse;1 but silence in such a case could in no sense be regarded as a representation. The ground of liability is change of position caused by negligent2 or fraudulent silence constituting an adoption of the signature.3

To put the case upon the ground of representation would lead to very great difficulties and probably to downright confusion. If silence is to be considered a case of representation, it might well be urged that innocent silence, i. e. silence without knowledge of the real state of things, would be attended with legal consequences; affording ground e. g. for the rescission of a contract, or for defence or recoupment in an action upon the contract by the party who kept silent. Such is the law, at least in courts of equity if not at last in all courts, of innocent misrepresentation; the very opposite has always been the law in regard to silence.5 Silence must be fraudulent, or wrongful at the time, to have any effect.

1 McKenzie v. British Linen Co., 6 App. Cas. 82, 109, Lord Watson. Silence was considered nothing until a change of position. See Zell's Appeal, 103 Penn. St. 344, to same effect.

2 People v. Bank of North America, 75 N. Y. 548, 562. See Bigelow, Estoppel, 613, 4th ed.

3 McKenzie v. British Linen Co., supra.

Ante, pp. 410 et seq.

5 If it should be said that there is the same reason for legal consequences in the one case as in the other, because after the silent party has learned of the facts it is wrong for him to insist upon

It will be seen from the case in the House of Lords just referred to that it is not necessary that the party to be affected by silence should have been present at the time of the change of position by the opposite party, or at any time. Presence of the silent party makes a clearer case indeed; and generally where silence has been held fraudulent, the parties have been together. Still there may well be a duty to speak even when the silent party is absent; and this though there be no relation, in the legal sense, of trust or confidence between the parties. But this can only be the case, as before, where the silence may be treated as a true cause (not necessarily the entire or even main cause, but one of the causes) of the change of position.3 The silent party should know, or at least have reason to know, if that can be enough, of the particular transaction or situation; and perhaps the party acting should, in some cases, know that the silent party is aware of what is going on. Then it may well be said that the silence amounted to an active agency and misled, where there has in fact been a change of position.5

his bargain, the answer is (1) that a direct representation is a more active agency towards inducing a change of position than silence, and (2) that the representation is made for the very purpose of inducing action, while silence when innocent implies absence of any thing of the sort.

1 McKenzie v. British Linen Co., 6 App. Cas. 82.

2 See Anderson v. Hubble, 93 Ind. 570, 573.

3 Ante, p. 16.

4 As in cases like McKenzie v. British Linen Co., supra.

5 There had been none in McKenzie v. British Linen Co.

CHAPTER X.

SUNDAY LAWS.

THE Sunday statutes make illegal all acts done on Sunday, excepting only acts of necessity or of charity. Such statutes of course render invalid contracts made on that day, and with them all the preliminary transactions of the same or any other day; so that an action for damages or for rescission, based upon false representations made on that day, could not be maintained, any more than an action upon the contract.2

If however the action, even when upon contract, cannot be considered to be founded upon a contract made upon such day, the result will be different. In the case cited the plaintiff brought an action of contract for the price of cattle sold to and slaughtered by the defendants; and it appeared that a contract of sale had been made between the parties, and the cattle delivered, on Sunday, but upon false representations made upon another day, and that upon a week day, after such contract, the defendants promised to pay. It was held that the plaintiff was entitled to recover, upon the ground that the cause of action could not be considered in any degree founded upon a contract executed on the Lord's day, or upon any rights growing out of it, or any deceit then practised.' The contract sued upon was treated as resting upon the plaintiff's right of property, consequent upon a rescission of the

1 Robeson v. French, 12 Met. 24; Gunderson v. Richardson, 56 Iowa, 56.

2 An offer or demand of rescission on Sunday is invalid and will not justify

an action to recover the property. Merritt v. Robinson, 35 Ark. 483.

560.

8 Winchell v. Carey, 115 Mass.

Sunday bargain for the misrepresentation, and a subsequent sale and promise to pay for it lawfully made.1