Sufficiency of evidence as to fraudulent intent, see EVIDENCE, § 1517. Proof of under pleading, see In obtaining letters of administration, see EVIDENCE, §§ 1670 g, 1672. EXECUTORS AND ADMINISTRA TORS, § 13 e. EXECUTORS AND ADMINISTRA TORS, $ 47 f. EXECUTORS AND ADMINISTRA- . FALSE PRETENSES. FRAUDULENT CONVEYANCES. GAMING, § 12 a. GUARANTY, § 11. HOMESTEAD, § 20 c. HUSBAND AND WIFE, III. j. . IMPRISONMENT FOR DEBT, § 3 b. INDICTMENT, ETC., §§ 29, 56, 57. Infant's fraudulent misrepresentations as to age, see INFANTS, § 64 n, o. of release by infant of cause of action for As element of suit to enjoin use of name, see Of insured, effect of incontestable clause on, see In securing release from beneficiary of insurance In assignment of insurance policy, see As element of larceny, see Larceny where possession of property is obtained by trick or fraud, see ... In enterprise dependent on forfeiture for suc cess, see Judgment by, as abuse of process, see Misrepresentation by minor employee as to his In location of mining claim, see . Priority of mortgage over rights of former owner Validity of ordinance as to fortune telling, palm istry, etc., see In sale of dangerous article, see Imputing to principal, agent's knowledge of his own wrong, see Of officer in performing duty imposed by law, see INFANTS, § 80 e. INJUNCTION, § 173 c. INSURANCE, $$ 741, 792. . JUDGMENT, § 109 b. JUDGMENT, § 319. LARCENY, § 16. LOTTERY, § 2 f. MALICIOUS PROSECUTION, § 3 d. MALICIOUS PROSECUTION, § 23. MASTER AND SERVANT, $$ 80, 82. . MINES, § 12 c. MORTGAGE, $ 33 1. MUNICIPAL CORPORATIONS, § NEGLIGENCE, § 40 s. NOTICE, §§ 23–25, 32, 35. ... OFFICERS, § 115 f. PARTIES, § 15 f. .. PATENTS, § 4 e. Operation of pure food law on article produced under patent, see Pleading as to, see . PLEADING, §§ 4 c, 25, 97, 158 J, 212 c, 236 c, 244 a, b, 278 b, 391 b, 403-409, 495, 529 c, 557 e. Of deputy sheriff, in making sale on execution, see SHERIFF, § 9 h. Liberal construction of statute against, see As element of infringement of trademark or tradename or unfair competition, see Conversion of goods obtained by, see . In representation as to boundaries or quantity of land sold, see In supplying impure water, see In interfering with revocation of will, see SUBSCRIPTION, § 7. STATUTES, § 289 k, l. TRADEMARKS, TRADENAMES, AND TROVER, $ 30 a. VENDOR AND PURCHASER, § 10. WILLS, $89 a. See also WORDS AND PHRASES, 929, 947, 1316, 1340, 1456-1462, 2012, 2231, 2232. 3218. I. In general. § 1. Generally. a. Whether or not fraud exists is a conclusion of law derived from facts and circumstances. Warren v. Union Bank, 43 L.R.A. 256, 157 N. Y. 259, 51 N. E. 1036. al. Bad faith or mala fides is the opposite of good faith and consists in guilty knowledge or wilful ignorance showing a vicious or evil mind. Burnham Loan & Invest. Co. v. Sethman, L.R.A.1918F, 1158, Colo. 171 Pac. 884. b. The essential constituents of a cause of action for fraud and deceit are representation, falsity, scienter, deception, and injury. Kuelling v. Roderick Lean Mfg. Co. 2 L.R.A. (N.S.) 303, 183 N. Y. 78, 75 N. E. 1098. c. The essential elements necessary to constitute actionable fraud and deceit are that "it must appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth, and as a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (5) that plaintiff acted in reliance upon it; and (6) that he thereby suffered injury." Raser v. Moomaw, 51 L.R.A. (N.S.) 707, 78 Wash. 653, 139 Pac. 622. d. Intentional fraud, as distinguished from mere breach of duty or omission to use due care, is an essential factor in an action for deceit. Kountze v. Kennedy, 29 L.R.A. 360, 147 N. Y. 124, 41 N. E. 414. e. Wilful misrepresentation and an attempt thereby to induce another person to alter his position are essential elements of actionable deceit. Hart v. Evanson, 3 L.R.A. (N.S.) 438, 14 N. D. 570, 105 N. W. 942. f. An untrue statement of a matter within the party's own knowledge is fraudulent. Roberts v. French, 10 L.R.A. 656, 153 Mass. 60, 26 N. E. 416. g. A false representation of a material fact constitutes legal fraud. National Cash Register Co. v. Townsend, 70 L.R.A. 349, 137 N. C. 652, 50 S. E. 306. h. The law will not declare fraudulent that which equity adjudges right and prop er. Durant v. Pierson, 12 L.R.A. 146, 124 N. Y. 444, 26 N. E. 1095. i. The means by which a fraud is accomplished are immaterial except so far as they tend, in connection with the damage suffered, to show an actionable injurythe gravamen being fraud and damage. Kuelling v. Roderick Lean Mfg. Co. 2 L.R.A. (N.S.) 303, 183 N. Y. 78, 75 N. E. 1098. j. One commits no fraud in submitting a cause to the judgment of a court having jurisdiction to hear and determine it, whatever his own opinion may be touching his right to relief therein. Travellers' Protective Asso. v. Gilbert, 55 L.R.A. 538, 111 Fed. 270, 49 C. C. A. 309. k. A mere breach of a contract does not amount to a fraud, and neither a knowledge or inability to perform, nor an intention not to do so, would make the transaction fraudulent. Miller v. Sutliff, 24 L.R.A. (N.S.) 735, 241 Ill. 521, 89 N. E. 651. 1. He who obtains property by will or I. In general. otherwise, through undue influence or con- higher price from the purchaser by means sciously taking advantage of the incompet- of a positive statement that that is the least ency of the owner, commits a fraud of the the owner will take for the property, and most serious character. Boardman v. Lor- that it is a bargain at that price, is liable entzen, 52 L.R.A. (N.S.) 476, 155 Wis. 566, to the purchaser in an action for deceit for 145 N. W. 750. the difference secured through his false rep m. The mere fact of the possibility of the subsequent sale of the lands involved does not make it fraudulent for a woman whose name was forged to her husband's conveyance thereof, to fail to give notice of such forgery after her discovery thereof. Hunt v. Reilly, 59 L.R.A. 206, 24 R. I. 68, 52 Atl. 681. n. An agreement made by a corporation denominated a funding company, by which it promises to pay to each investor, upon the maturity of his certificates, half as much money again as he invested, is fraudulent upon its face, where it is proposed to take the money of one investor to pay the other, with no provision for the ultimate payment of those whose money is thus taken, and large profits are promised which are not earned or expected to be earned in the business, and there is no property or capital for such payment, but the ability of the company to perform its promises depends upon contingencies which it can neither perform nor foretell. Fidelity Funding Co. v. Vaughn, 10 L.R.A. (N.S.) 1123, 18 Okla. 13, 90 Pac. 34. o. A continuation of stock in the name of one person on the books of the corporation, when the title is in another, does not constitute fraud. Gray v. Graham, 49 L.R.A. (N.S.) 1159, 87 Conn. 601, 89 Atl. 262. p. A false statement of the cost of corporate stock which one is trying to sell to a friend to whom he makes a promise to secure for him employment with the corporation, as part of the inducement for the purchase, is such fraud as will justify a rescission of a purchase made in reliance thereon, and a judgment for return of the consideration, or damages in case it has passed out of the possession of the vendor. Kohl v. Taylor, 35 L.R.A. (N.S.) 174, 62 Wash. 678, 114 Pac. 874. (Annotated) q. A retention of title to dry goods sold by a wholesaler to a retailer cannot be declared fraudulent because the provision therefor was in fine print and the attention of the purchaser was not called to it, if it was in the same type as the rest of the contract, of which there was very little excepting such reservation, while the parties had previously had similar dealings with each other. Mishawaka Woolen Mfg. Co. v. Stanton, L.R.A.1917B, 651, 188 Mich. 237, 154 N. W. 48. r. Misrepresentation of the price paid for property by the vendor or others does not constitute actionable deceit, in the absence of fiduciary relations between the parties, or other facts or circumstances giving rise to an express or implied agreement that the price paid should determine the price in the contract. Beare v. Wright, 69 L.R.A. 409, N. D. 103 N. W. 632. s. A broker who, having authority to sell real estate at a certain price, secures a resentations. Hokanson V. Oatman, 35 L.R.A. (N.S.) 423, 165 Mich. 512, 131 N. W. 111. t. Fraud cannot be inferred from the fact of buying property through an agent who is instructed to take title in his own name and does not disclose his agency. Cowan v. Fairbrother, 32 L.R.A. 829, 118 N. C. 406, 24 S. E. 212. u. An architect is guilty of fraud who, to secure the contract for preparing plans and supervising the construction of a building, states positively that the cost of a structure of the general character desired will not exceed a specified sum, when he knows that such is not the fact. Edward Barron Estate Co. v. Woodruff Co. 42 L.R.A. (N.S.) 125, 163 Cal. 561, 126 Pac. 351. (Annotated) v. One who lends money to an insane person with which to purchase real estate cannot, where both he and the vendor act independently and without knowledge of the insanity, compel the vendor to return the money to him on the ground of fraud. Murphree v. Clisby, 29 L.R.A. (N.S.) 933, 168 Ala. 339, 52 So. 907. w. A creditor is not allowed, by practis ing a fraud, to acquire the title to the property of his debtor, even with the purpose of crediting the value on a just debt. Ditton v. Purcell, 36 L.R.A. (N.Š.) 149, 21 N. D. 648, 132 N. W. 347. x. False representations that the ownership of a tract of land carries with it as a practical matter the privilege of using water for its irrigation, although no claim is made that a formal water right has been granted, may be the basis for the recovery of damages by the purchaser. Epp v. Hinton, L.R.A.1915A, 675, 91 Kan. 513, 138 Pac. 576. y. That the discount of subscribers' notes indorsed by an insurance company, by the bank in which they were deposited as capital, was genuine and real, does not prevent its certificate that the company's capital and surplus had been paid in, in cash, from being false and misleading. Hindman v. First Nat. Bank, 57 L.R.A. 108, 112 Fed. 931, 50 C. C. A. 623, certiorari denied in 186 U. S. 483, 46 L. ed. 1261, 22 Sup. Ct. Rep. 943. § 2. Constructive fraud. As ground for attachment, see ATTACHMENT, § 11 a-c. As ground for vacating judgment, see JUDGMENT, § 288. Pleading in action for, see PLEADING, § 406. As basis of constructive trust, see TRUSTS, §§ 27-42. a. Evil intention, moral turpitude and actual dishonesty are wanting in a mere legal or constructive fraud. Weare Com I. In general. mission Co. v. Druley, 30 L.R.A. 465, 156 Ill. 25, 41 N. E. 48. § 3. Effect of fiduciary or confiden tial relation. See also HUSBAND AND WIFE, § 92 a. a. An action for fraud and deceit will lie against one who fraudulently induces a woman to enter into a void marriage relation with him, by assurances that an existing marriage into which he has entered with another is void. Sears v. Wegner, 14 L.R.A. (N.S.) 819, 150 Mich. 388, 114 N. W. 224. woman induces a man to falsely assume and b. The deception by which a married maintain the status of her husband is an a. When one of the parties to a contract places a known trust and confidence in the other, any misrepresentation by the party confided in with respect to a material fact and constituting an inducement to the other party by which an undue advantage is tak-injury to the person, complete with the conen of him is regarded as a fraud. Edward Barron Estate Co. v. Woodruff Co. 42 L.R.A. (N.S.) 125, 163 Cal. 561, 126 Pac. 351. b. Wherever two persons stand in such a relation that, while it continues, confidence is necessarily reposed by one, and the influence which naturally grows out of that confidence is possessed by the other, and this confidence is abused, or the influence is exerted to obtain an advantage at the expense of the confiding party, or, by concealment of material facts, the same result follows, the person so availing himself of his position will not be permitted to retain any advantage gained, although the transaction could not have been impeached if no such confidential relation had existed. Thomas v. Thomas, 35 L.R.A. (N.S.) 124, 27 Okla. 784, 109 Pac. 825, 113 Pac. 1058. a. a. Obtaining the property of an intoxicated person at an inadequate price, knowing of his incapacity to make a valid agreement in respect to it, constitutes an actionable fraud. Baird v. Howard, 22 L.R.A. 846, 51 Ohio St. 57, 36 N. E. 732. § 5. Selling goods for fraudulent purchaser. a. An auctioneer who sells goods for a fraudulent purchaser thereof, under such circumstances as to charge him with notice that they have been obtained by fraud, is ble for the value of the goods equally with the fraudulent purchaser and not merely for the amount of commissions received by him upon the sale, although he has accounted for the proceeds of such goods to his principal. Morrow Shoe Mfg. Co. v. New England Shoe Co. 24 L.R.A. 417, 57 Fed. 685, 60 Fed. 341, 6 C. C. A. 508, 8 C. C. A. 652. § 6. Inducing marriage. As ground for divorce, see DIVORCE AND Claim against estate because of void mar- Limitation of action for fraudulent mar- Pleading as to, see PLEADING, § 403 b. void marriage as competent witness sumation of the void marriage. Re Payne, 33 L.R.A. 418, 65 Conn. 397, 32 Atl. 948. c. A person who, to induce a marriage with her son, falsely represents that the son is the owner of certain specified real estate, is liable in damages to a woman who enters into a marriage with the son in reBeach, 46 L.R.A. (N.S.) 98, 160 Iowa, 346, on the representations. Beach v. liance 141 N. W. 921. (Annotated) a. False representations with respect to the law of another state may be the basis of an action for damages on the ground of fraud. Epp v. Hinton, L.R.A.1915A, 675, 91 Kan. 513, 138 Pac. 576. (Annotated) b. A woman cannot avoid liability on a note which she signed with her husband because she was told that her signature was necessary to validate a mortgage executed to secure the note and would impose no personal obligation upon her, since the representation is one of law. Wicks v. Metcalf, L.R.A.1918A, 493, 83 Or. 687, 163 Pac. 434, 988. (Annotated) 8 8. In procuring release from injured person. re lease from an injured employee is not shown II. Concealment; failure to disclose facis. § 9. Generally. |