During the negotiations, the defendant exhibited to the plaintiff a plan of a survey of the mine, which had been made for him, and the plaintiff took a copy of it. In making this plan, the surveyor, with the defendant's knowledge and assent, did not take the course of the first line leading from the shaft through which the mine was entered, but assumed it to be due north; and the defendant never took any means to verify the course of this line. In point of fact, this line did not run due north, but ran to the west of north. If it had run due north, the survey, which was in other respects correct, would have correctly shown the mass of iron ore in question to have been within the boundaries of the land covered by the defendant's lease; but in consequence of this erroneous assumption the survey was misleading, the iron ore being in fact outside of those boundaries. It thus appears that the defendant knew that what purported to be a survey was not in all respects an actual survey, and that the line upon which all the others depended had not been verified, but was merely assumed; and this was not disclosed to the plaintiff. The defendant took it upon himself to assert, as of his own knowledge, that this large mass of ore was in his ore bed, that is, within his boundaries; and in support of this assertion he exhibited the plan of the survey, the first line of which had not been verified, and was erroneous. Now this statement was clearly

of a thing which was susceptible of knowledge. A real survey, all the lines, of which had been properly verified, would have shown with accuracy where the ore was situated. It was within the defendant's knowledge that the first line of the plan had not been verified. If under such circumstances he chose to take it upon himself to say that he knew that the mass of ore which had been discovered was in his ore bed, in reliance upon a plan which he knew was not fully verified, it might properly be found that the charge of fraudulent misrepresentation was sustained, although he believed his statement to be true.

The case of Milliken v. Thorndike (103 Mass. 382) bears a considerable resemblance to the present in its facts. That was an action by a lessor to recover rent of a store, which proved unsafe, certain of the walls having settled or fallen in shortly after the execution of the lease. The lessor exhibited plans, and, in reply

to a question if the drains were where they were to be according to the plans, said that the store was built according to the plans in every particular; but this appeared by the verdict of the jury to be erroneous. The court said, by Mr. Justice Colt, that the representation "was of a fact, the existence of which was not open and visible, of which the plaintiff (the lessor) had superior means of knowledge, and the language in which it was made contained no words of qualification or doubt. The evidence fully warranted the verdict of the jury."

In respect to the rule of damages, the defendant does not in argument contend that the general rule adopted by the judge was incorrect, but that it does not sufficiently appear what considerations entered into his estimate. No requests for rulings upon this subject were made, and there was no error in the course pursued by the judge.

Exceptions overruled.1

McKOWN v. FURGASON.

47 IOWA, 636.-1878.

Action for deceit in the sale of a note. Judgment for plaintiff. Defendant appeals.

DAY, J. The court instructed the jury as follows:

"3. If [you find that] at the time defendant sold the note in question to the plaintiff, he represented said note was good, and that the maker

1 Accord: Lynch v. Mercantile Trust Co., 18 Fed. Rep. 486; Dulaney v. Rogers, 64 Mo. 201; Haven v. Neal, 43 Minn. 315.

That a defendant is not liable in an action for deceit where the misrepresentation was made innocently, see Cowley v. Smyth, 46 N. J. L. 380; Da Lee v. Blackburn, 11 Kans. 150; Tucker v. White, 125 Mass. 344; Wakeman v. Dalley, 51 N. Y. 27. Contra: Holcomb v. Noble, 69 Mich. 396; Davis v. Nuzum, 72 Wis. 439, in which States no such distinction is taken.

If an independent action of deceit could not be maintained, it would seem that a claim for damages for deceit could not be interposed as a defense to an action for the price. McIntyre v. Buell, 132 N. Y. 192; King v. Eagle Mills, 10 Allen, 548; First N. B. v. Yocum, 11 Neb. 328. Contra: Mulvey

v. King, 39 Ohio St. 491; Loper v. Robinson, 54 Tex. 510.

But it would be a defense to an action for damages for breach of a bilateral

contract. School Directors v. Boomhour, 83 Ill. 17, ante, p. 271.

thereof, H. E. Stewart, was solvent; that the plaintiff relied upon said representations in purchasing said note; and that said representations were untrue at the time they were made; and that said defendant knew they were untrue, or had no reasonable grounds for believing them true, your verdict should be for the plaintiff for the amount paid for said note, together with six per cent interest from the date of said payment."

The giving of this instruction is assigned as error. It was not proper to give this instruction under the issues presented. The plaintiff claims of defendant damages for fraudulently making representations, with full knowledge when he made them that they were false. Upon this question the case of Pearson v. Howe (1 Allen, 207) is directly in point. In that case it was held that in an action for deceit a declaration which alleges that the representations made were well known by defendant to be untrue. is not supported by proof, simply, that the defendant had reasonable cause to believe that they were untrue.

Judgment reversed.1

1 "The plaintiff requested the court to charge that if the defendant knew or had reason to believe there was not one hundred and twentyfive acres of land, he was guilty of fraud in representing that there was that quantity. The court declined to adopt that precise language, but repeated what had been previously said, that if defendant, intending to cheat and defraud, misrepresented or concealed a material fact, he was liable for the wrong. The request was erroneous. It sought to substitute for the fraudulent intent a fact which might or might not, in the minds of the jury, establish that intent. The defendant might have had reason to believe that there was less than one hundred and twenty-five acres of land, and yet not have believed it, but have honestly believed the reverse. The cases cited in support of the request to charge, when carefully read, are found to guard against any such misapprehension. (Meyer v. Amidon, 45 N. Y. 169; Wakeman v. Dalley, 51 Id. 27.) They treat the fact that one has reason to believe' his statement to be false merely as evidence tending to prove the fraudulent intent, and require that intent to be established. The court applied the needed correction to the request, and declined to make conclusive as matter of law what was properly but evidence upon the question of fact."- Finch, J., in Salisbury v. Howe, 87 N. Y. 128, 135.

d. The representation must be made with the intention that it should be acted upon by the injured party.

STEVENS v. LUDLUM.

46 MINNESOTA, 160.-1891.

[Reported herein at p. 280.]

HUNNEWELL v. DUXBURY.

154 MASSACHUSETTS, 286.-1891.

BARKER, J. The action is tort for deceit, in inducing the plaintiff to take notes of a corporation by false and fraudulent representations, alleged to have been made to him by the defendants, that the capital stock of the corporation, amounting to $150,000, had been paid in, and that patents for electrical advertising devices, of the value of $149,650, had been transferred to it.

From the exceptions, it appears that the corporation was organized in January, 1885, under the laws of Maine, and engaged in business in Massachusetts; that it filed with the commissioner of corporations a certificate containing the above statements, dated August 11, 1885, as required by the St. of 1884, c. 330, § 3, signed by the defendants, with a jurat stating that on that date they had severally made oath that the certificate was true, to the best of their knowledge and belief; that before the plaintiff took the notes the contents of this certificate had been communicated to him by an attorney whom he had employed to examine the records; and that he relied upon its statements in accepting the notes. There was no other evidence of the making of the alleged

representations.

The main question, which is raised both by the demurrer to the second count of the declaration and by the exception, is whether the plaintiff can maintain an action of deceit for alleged misstatements contained in the certificate. In the opinion of a majority of the court this question should have been decided adversely to the plaintiff. The execution by the defendants of

the certificate to enable the corporation to file it under the St. of 1884, c. 330, § 3, was too remote from any design to influence the action of the plaintiff to make it the foundation of an action of deceit.

To sustain such an action, misrepresentations must either have been made to the plaintiff individually, or as one of the public, or as one of a class to whom they are in fact addressed, or have been intended to influence his conduct in the particular of which he complains.

This certificate was not communicated by the defendants, or by the corporation, to the public or to the plaintiff. It was filed with a state official for the definite purpose of complying with a requirement imposed as a condition precedent to the right of the corporation to act in Massachusetts. Its design was not to procure credit among merchants, but to secure the right to transact business in the State.

The terms of the statute carry no implication of such a liability. Statutes requiring similar statements from domestic corporations have been in force here since 1829, and whenever it was intended to impose a liability for false statements contained in them there has been an express provision to that effect; and a requisite of the liability has uniformly been that the person to be held signed knowing the statement to be false. St. 1829, c. 53, § 9; Rev.

St. 1870, c. 224, § 38, cl.

Sts. c. 38, § 28; Gen. Sts. c. 60, § 30; 5; Pub. Sts. c. 106, § 60, cl. 5. To hold that the St. of 1884, c. 330, § 3, imposes upon those officers of a foreign corporation who sign the certificate, which is a condition of its admission, the added liability of an action of deceit, is to read into the statute what it does not contain.

If such an action lies, it might have been brought in many instances upon representations made in returns required of domestic corporations, and yet there is no instance of such an action in our reports. In Fogg v. Pew (10 Gray, 409) it is held that the misrepresentations must have been intended and allowed by those making them to operate on the mind of the party induced, and have been suffered to influence him. In Bradley v. Poole (98 Mass. 169) the representations proved and relied on were made personally by the defendant to the plaintiff, in the