tract was entered into between the parties. 24 A. & E. Ency. of Law, P. 1034, and cases cited."

Question 63: What was the suit about and the defense? Was it a good defense?

Case 64. Butler v. Moses, 43 Ohio Stat. 166, 1 N. E. 316.

Facts: Butler had bolting cloth for sale. Bolting cloth is a silk fabric 40 inches wide and of foreign manufacture and is worth from $2.00 to $6.00 a yard, according to fineness. Moses wrote Butler for prices and Butler replied: "Yours of yest'y to hand this morning and in answer I would say that I have the bolting cloth, and will send it to you and you can use what you want and account to me for what you need at 5 cts. a yard that Gale would charge you." Gale was a man in Cleveland who sold bolting cloth. Moses ordered some of the cloth. He used 2011⁄2 yards and sent Butler $1.03 to pay for same, claiming that Butler had offered it for 5c a yard, and refused to pay more. Butler sues.

Point Involved: That a mistake was made by one party in the terms used cannot be taken advantage of by another party who knows of the mistake. That a person cannot take advantage of a clerical error where he knows it to be such.

FOLLETT, J.

What did Butler offer when he wrote, 'If you desire, will send them to you, and you can use what you want, and account to me for what you need at 5 cts a yard that Gale would charge you?" Gale was known by the parties to be a dealer in bolting-cloth, and what he would charge was easily ascertained. What Gale would charge was referred to as a standard of price. There is no other reason why Gale's name was mentioned, or why what he would charge was referred to. And on examination of all the card contains, it is clear that Butler did not make an unqualified offer to sell the cloth at five cents per yard, as neither five cents nor ten

cents per yard could be what Gale would charge; but his offer was to charge either the same as Gale would charge, or more than Gale would charge, or less than Gale would charge.

"In the circumstances the latter meaning was so manifest that Prior, on reading the card, saw its true intent, and told Moses that Butler's offer was to sell the cloth for five cents a yard less than Gale would charge him, and that it was not to sell at five cents a yard. And Moses, by thus sending for the cloth and using it, is bound by the true offer thus explained and known to him. But if Moses' claim be true, that he did not accept of the offer to sell for five cents a yard less than Gale would charge him, the minds of Butler and Moses never 'assented to the same thing in the same sense,' and no contract was made by them for the sale of this cloth. And in this view, as Moses has taken Butler's cloth, and put it to Moses' use, Moses is liable to Butler for the value of the cloth so used. In this view, Moses would not be entitled to the discount of five cents per yard which Butler gave him. In either view of this case, Moses is liable to Butler for all that was claimed in the petition in the court of common pleas, and the charge of the court was not to the prejudice of Moses."

Question 64: (1) What was the mistake in Case 64? Was it a mistake that the other party could take advantage of? Why? (2) A offered B lumber at $20 a thousand feet in five car-load lots. He meant to say $25 a thousand feet. B accepts. Is A bound? (Western Union Tel. Co. v. Flint River Lumber Co., 114 Ga. 576.)

Case 65. Wood v. Boynton, 64 Wis. 265.

Facts: Wood found a small uncut diamond worth $700 to $1,000. Thinking it was a topaz she sold it for $1.00 to Boynton, who also thought it was a topaz and was ignorant of its true character. When Wood discovered that the stone was in fact a diamond she tendered back the

$1.00 with interest and demanded possession. Boynton refused and Wood brought suit.

Question: If there is a mutual mistake as to the quality and value of the subject matter of an agreement, does such mistake affect the validity of the contract?

TAYLOR, J.: *

There is no pretense as to mis

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take in the identity of the thing sold. It was exhibited to the vendee before the sale was made, and the thing sold was delivered to the vendee when the purchase price was paid. When this sale was made the value of the thing sold was open to the investigation of both parties; neither knew its extrinsic value, and, so far as the evidence in this case shows, both supposed that the price paid was adequate. (Judgment for defendant)

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Question 65: Was the mistake in this case as to identity, existence, or value? Does mistake by both the parties as to the value of a thing sold effect the contract?

(Note to Case 65: There is room for difference of opinion on this case. It is clearly true that a mere mistake as to value is of no effect. But that generally is applied in cases where the parties have no doubt as to the thing they are selling and buying, for example, a book, not known to be a rare copy.)

B. Circumstances of Undue Advantage Rendering Contract Voidable.

(a) Fraud in the inducement or consideration.

(b) Duress.

(c) Undue influence.

(d) Disaffirmance and ratification of contracts voidable for foregoing

reasons.

(a) Fraud in the Inducement or Consideration.

§ 68. Fraud in the inducement defined.

§ 69. Express statements of fact as fraud. § 70. Opinions and predictions not fraud.

§ 71. Active concealment as fraud.

§ 75. Same. Relationships of trust and confidence.

§ 76. Summary of what constitutes fraud.

Sec. 68. (Contract, § 36.) Fraud in the Inducement or Consideration Defined.

Case 66. Nat. Cash Reg. Co. v. Townsend, 137 N. C. 652.

Facts: Plaintiff Townsend bought a cash register on the statement that its use would save the expense of a bookkeeper and a half of a clerk's time. He now alleges that these assertions are false and seeks to rescind the sale on the ground of fraud.

Point Involved: Is a statement of an opinion or a commendation a fraudulent representation? Generally, what constitutes fraud?

BROWN, J.: "* * The material elements of fraud, as laid down by the text writers, are, first, misrepresentation or concealment; second, an intention to deceive, or negligence in uttering falsehoods with intent to influence the actions of others; and third, the success of the deceit in influencing the action of the other party. To constitute legal fraud, which will warrant the rescission of a contract, there must be a false representation of a material fact. There are cases in the books where courts of equity have afforded relief from the consequences of innocent misrepresentation. Contracts induced thereby have in some instances, and under peculiar circumstances, been set aside; but in all the cases the misrepresentation was of a material and subsisting fact. No particular rule can be laid down as to what false representation will constitute fraud, as this must necessarily depend upon the facts of each case, the relative situation of the parties, and their means of information. But all the authorities are to the effect that where the false representation is an expression of commendation, or is simply a matter of opinion, the

courts will not interfere to correct errors of judgment. Walsh v. Hall, 66 N. C. 236. The law will not give relief unless the misrepresentation be of a subsisting fact. Hill v. Gettys, 135 N. C. 375, 47 S. E. 449. What has been called 'promissory representation,' looking to the future, as to what the vendee can do with the property, how much he can make on it, and, in this case, how much he can save by the use of it, are on a par with false affirmations and opinions as to the value of property, and do not generally constitute legal fraud. Benjamin, Sales, 7th ed. 483 et seq., Gordon v. Parmelee, 2 Allen, 212; Long v. Woodman, 58 Me. 52, and cases cited. Mr. Clark, in his work on Contracts, states, in substance, that commendatory expressions or exaggerated statements as to value or prospects, or the like, as where a seller puffs up the value and quality of his goods, or holds out flattering prospects of gain, are not regarded as fraudulent in law. Pp. 332-334. It is the duty of the purchaser to investigate the value of such expressions of commendation. He cannot safely rely upon them. If he does he cannot treat it as fraud, either for the purpose of maintaining a deceit, or for the purpose of rescinding a contract at law or in equity. Saunders v. Hatterman, 24 N. C. (2 Ired. L.) 32; 37 Am. Dec. 404; 14 Am. & Eng. Enc. Law, p. 34, and cases cited. Mr. Kerr, in his work on Fraud and Mistake, at page 83, says: 'A misrepresentation to be material should be in respect of an ascertainable fact, as distinguished from a mere matter of opinion. A representation which merely amounts to a statement of opinion goes for nothing, though it may not be true, for a man is not justified in placing reliance on it.' Again: 'man who relies on such affirmations made by a person whose interest might so readily prompt him to invest the property with exaggerated value does so at his peril, and must take the consequences of his own imprudence.'

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"It is possible that, if the defendant and his clerks persevere in their efforts to master this machine, he may agree with his brother that 'the cash register is a good