trated by a case in the federal courts, where the holder of a policy of life insurance determined to surrender it and obtain its surrender value, at the same time taking a new policy. For the purpose of effecting the change, he went to the office of the agent of the company, where he was examined by the company's physician, who rejected him as an applicant for new insurance, on the ground that he had an affection of the heart. At the same time the physician told him that the disease was not in itself dangerous, and would not cause his death, though it would prevent him from obtaining insurance in any other company, and advised him to retain the policy he then had. But the insured surrendered the policy, and he and his wife, who was the beneficiary, executed a release thereon. In fact, his disease, as the physician knew, was likely to cause his death at any time, and did so within a few days thereafter. It was held that the wife could not avoid the release because of the false statements made by the physician, which were not the inducement to its execution, nor intended to be so, although, if the physician had stated the truth within his knowledge, it might have prevented the surrender of the policy. 501 For the same reason, where false statements are made concerning the subject of a contract, but the party's real reason for entering into it is the desire to avoid trouble, escape from an embarrassing situation, or avert threatened litigation, it cannot be said that the misrepresentations induced the contract.592 So, a false statement is not fraudulent when there is no reason why it should be believed and acted on, or where it is of so trivial a character that it cannot be believed to have affected the judgment or decision of the other party,594

593

767; Henn v. Douglass, 147 App. Div. 473, 131 N. Y. Supp. 810; Whitmire v. Heath, 155 N. C. 304, 71 S. E. 313; Johnson v. Hulett, 56 Tex. Civ. App. 11, 120 S. W. 257; Camp v. Smith (Tex. Civ. App.) 166 S. W. 22. And see Civ. Code Ga. 1910, § 4113.

591 Wagner v. National Life Ins. Co., 90 Fed. 395, 33 C. C. A. 121. 592 Quigley v. Quigley (Iowa) 115 N. W. 1112; Bowman v. Carithers, 40 Ind. 90.

593 Branan v. Warfield, 3 Ga. App. 586, 60 S. E. 325.

594 Garrison v. Technic Electrical Works, 63 N. J. Eq. 806, 52 Atl.

But

A conclusive test of the misrepresentations being the inducement to the contract is the fact (if it be so) that the party would have refused his consent if the representations had not been made or if he had known the truth.595 this is a mental state, and naturally not susceptible of exact proof. Nor is it always required to be proved to the fullest extent. In some of the cases it is held enough to show that the party might not have entered into the contract but for the representations,598 or that a finding that a contract to purchase land was induced solely through false representations is sufficient without a finding that the plaintiff's consent would not have been given but for such representations.597 And one very advanced decision is to the effect that fraudulent representations constituting a material inducement to a contract are actionable, even though the transaction would have taken place if they had not been made.59

It is not necessary that the misrepresentations complained of should have been the sole or exclusive cause of the contract, if they were proximate, immediate, and material, that is to say, if they materially influenced the conduct of the party it is enough, although they were not the sole or even the predominant inducement, but only contributed to sway his decision and induce his consent.599 Thus, for ex

595 Diamond v. Shriver, 114 Md. 643, 80 Atl. 217; Stoker v. Fugitt (Tex. Civ. App.) 113 S. W. 310; Nearing v. Hathaway, 128 App. Div. 745, 113 N. Y. Supp. 318.

596 Atlantic Trust & Deposit Co. v. Union Trust & Title Corporation, 110 Va. 286, 67 S. E. 182, 135 Am. St. Rep. 937.

597 Royal v. Lange, 15 Cal. App. 724, 115 Pac. 750. 598 Darlington v. J. L. Gates Land Co., 151 Wis. 461, 138 N. W. 72, 139 N. W. 447. And see Guild v. More (N. D.) 155 N. W. 44.

599 Farrar v. Churchill, 135 U. S. 609, 10 Sup. Ct. 771, 34 L. Ed. 246; In re Gany (D. C.) 103 Fed. 930; Rice v. Gilbreath, 119 Ala. 424, 24 South. 421; MacDonald v. De Fremery, 168 Cal. 189, 142 Pac. 73; Scholfield Gear & Pulley Co. v. Scholfield, 71 Conn. 1, 40 Atl. 1046; Skeels v. Porter, 165 Iowa, 255, 145 N. W. 332; Baker v. Mathew, 137 Iowa, 410, 115 N. W. 15; Kelty v. McPeake, 143 Iowa, 567, 121 N. W. 529; Matthews v. Bliss, 22 Pick. (Mass.) 48; Safford v. Grout, 120 Mass. 20; Light v. Jacobs, 183 Mass. 206, 66 N. E 799; Burnham v. Ellmore, 66 Mo. App. 617; American Hardwood Lumber Co. v. Dent, 121 Mo. App. 108, 98 S. W. 814; Laska v. Harris, 215 N. Y. 554, 109 N. E. 599; State v. Merry, 20 N. D. 337, 127 N. W. 83; Handy v. Waldron, 19 R. I. 618, 35 Atl.

ample, where the controlling considerations which induced the plaintiff to act were the defendant's fraudulent representations regarding existing facts, plaintiff is entitled to recover his damages, notwithstanding he may also have been influenced by defendant's false promises as to future transactions. So, where some of the representations made by a vendee in procuring a deed to land are true, and some are false and sufficient to set aside the sale, and it appears that the latter might and did influence the vendor in the disposition of the land, the sale should be canceled.6° And a false and fraudulent statement inducing the plaintiff to invest in more stock of a corporation is actionable, although he had previously invested money in the stock of the same company.602 Finally, it is held that, where a seller has made a false representation which from its nature might induce the buyer to enter into a contract of purchase, it will be inferred that the buyer was induced thereby to contract, and it does not rest with him to show that he in fact relied on the representation.603

601

§ 112. Necessity of Actual Loss or Injury. In an action for deceit or to recover damages for fraud, or in a case where fraudulent representations are set up as a defense to an action on the contract, there can be no recovery (or the defense cannot prevail) unless the party claiming to have been defrauded shows that he has suffered some appreciable loss, damage, or injury, directly in consequence of the misrepresentations.604 Thus, for example, giving a check on

884; Shaw v. Gilbert, 111 Wis. 165, 86 N. W. 188. Compare Nauman v. Oberle, 90 Mo. 666, 3 S. W. 380.

600 Damers v. Sternberger, 52 Misc. Rep. 532, 102 N. Y. Supp. 739; Dashiel v. Harshman, 113 Iowa, 283, 85 N. W. 85.

601 Stackpole v. Hancock, 40 Fla. 362, 24 South. 914, 45 L. R. A. 814.

602 McDonald v. Smith, 139 Mich. 211, 102 N. W. 668.

603 Grosh v. Ivanhoe Land & Improvement Co., 95 Va. 161, 27 S. E. 841; Redgrave v. Hurd, 20 Ch. Div. 1.

604 Graham v. Peale, Peacock & Kerr, 173 Fed. 9, 97 C. C. A. 311; Stratton's Independence v. Dines, 135 Fed. 449, 68 C. C. A. 161; Pickthall v. Steinfeld, 12 Ariz. 230, 100 Pac. 779; Jackson & Sharp Co. v. Fay, 20 App. D. C. 105; Hughes v. Lockington, 221 Ill. 571, 77 N. E. 1105; Wesselhoeft v. Schanze, 153 Ill. App. 443; Srader v. Srader, 151 Ind. 339, 51 N. E. 479; Vogel v. Demorest, 97 Ind. 440; Bailey v. Oatis, 85 Kan. 339, 116 Pac. 830; Hunter v. Lee, 11

a bank, with the implied representation that it will be paid on presentation, which is dishonored, will not furnish ground for an action of fraud, where it was given in payment for goods sold and delivered long before, and no property was parted with in reliance on anything said or done at the time the check was given.605 So, false representations by an owner of property which induced a materialman to refrain from filing a lien, when at the time no lien could be created, do not create a liability. And where a husband alone conveyed land, with a covenant against incumbrances, a subsequent grantee, in procuring the execution of a quitclaim deed by husband and wife, was not guilty of fraud, as against the husband, because he concealed and misrepresented to him the increased value of the land, since the husband was bound by his covenant to procure a release of the wife's dower.607 And a fraudulent representation made to a vendee that a mortgage on the land only drew six per cent interest, when the mortgage on its face was in excess thereof, cannot be said to have worked injury to the vendee where he could deduct from the deferred payments the amount of excess interest.® So again, an administra

608

Kan. 292; Stevens v. Odlin, 109 Me. 417, 84 Atl. 899; Brackett v. Perry, 201 Mass. 502, 87 N. E. 903; Trayne v. Boardman, 207 Mass. 581, 93 N. E. 846; Fottler v. Moseley, 179 Mass. 295, 60 N. E. 788; Morgan v. Bliss, 2 Mass. 111; Emerson v. Brigham, 10 Mass. 199, 6 Am. Dec. 109; Thompson v. Newell, 118 Mo. App. 405, 94 S. W. 557; Rhodes v. Dickerson, 95 Mo. App. 395, 69 S. W. 47; Mix v. Charles P. Boland Co., 153 App. Div. 435, 138 N. Y. Supp. 361; Badger v. Pond, 120 App. Div. 619, 105 N. Y. Supp. 546; Tregner v. Hazen, 116 App. Div. 829, 102 N. Y. Supp. 139; Eames v. Brunswick Const. Co., 104 App. Div. 566, 94 N. Y. Supp. 24; Sonnesyn v. Akin, 14 N. D. 248, 104 N. W. 1026; Nelson v. Grondahl, 12 N. D. 130, 96 N. W. 299; Lake v. Webber, 6 Pa. Super. Ct. 42; Farmer v. Lynch (R. I.) 67 Atl. 449; Caffall v. Bandera Telephone Co. (Tex. Civ. App.) 136 S. W. 105; Buckingham v. Thompson (Tex. Civ. App.) 135 S. W. 652; Shoemaker v. Cake, 83 Va. 1, 1 S. E. 387; Lake v. Tyree, 90 Va. 719, 19 S. E 787; Brown v. Ocean Accident & Guarantee Corp., 153 Wis. 196, 140 N. W. 1112. Compare Blumenfeld v. Stine, 42 Misc. Rep. 411, 87 N. Y. Supp. 81. See, also, Kuper v. Snethen, 96 Neb. 34, 146 N. W. 991; Dunn & McCarthy v. Bishop (R. I.) 90 Atl. 1073; Bonzer v. Garrett (Tex. Civ. App.) 162 S. W. 934.

605 Goldstein v. Messing (Sup.) 104 N. Y. Supp. 724.

606 Kuteman v. Lacy (Tex. Civ. App.) 144 S. W. 1184.

607 Crowley v. C. N. Nelson Lumber Co., 66 Minn. 400, 69 N. W. 321. 608 Winkler v. Jerrue, 20 Cal. App. 555, 129 Pac. 804.

tor, suing a railroad company for damages for false representations made to him by the company's claim agent, inducing a settlement of his claim against the company for causing the death of the intestate, must show that he had a valid and existing claim against the company originally, and it is not sufficient to show that there was a claim which was disputed and contested and that he could reasonably apprehend that he had a just claim. But while deceit merely inducing one to make an executory contract may not be complained of, if nothing is done under the contract, so that there is no damage, yet if the deceit does not end in the making of the contract, but further influences a party to the contract in his conduct under it, it is a continuing deceit, of which such party, injured by the execution or partial execution of the contract, may complain.610

Not only must there be an actual and appreciable loss or injury, but it must be clearly shown to have occurred or to be inevitable. A mere conjecture or surmise that loss or injury may ensue is not what the law requires.11 This being established, however, any substantial loss or injury, whether pecuniary or otherwise, will give a right of action. For instance, an inchoate right of dower is a valuable right in property, for which a married woman, who is induced to release the same by fraudulent misrepresentations, may recover damages.612 And for the purpose of supporting an action of deceit, refraining from action, to the plaintiff's loss, in reliance on false representations, is in legal effect acting on the falsehood; so that it makes no difference whether the plaintiff has been fraudulently induced to buy property or to refrain from selling it.613 Nor is it necessary that the injury should be pecuniary. Thus, where the plaintiff was injured by defendant's false representations con

609 Urtz v. New York Cent. & H. R. R. Co., 202 N. Y. 170, 95 N. E. 711.

610 Edward Barron Estate Co. v. Woodruff Co., 163 Cal. 561, 126 Pac. 351, 42 L. R. A. (N. S.) 125.

611 Taylor v. Scoville, 54 Barb. (N. Y.) 34; Townsend v. Felthousen, 156 N. Y. 618, 51 N. E. 279; Martin v. Clark, 19 App. Div. 496, 46 N. Y. Supp. 616.

6.12 Garry v. Garry, 187 Mass. 62, 72 N. E. 335.

613 Fottler v. Moseley, 179 Mass. 295, 60 N. E. 788.