Chapter LXXIV: Section 3: of this statute is as follows (2)

Platte & Denver Canal Co. _v._ Dowell, 17 Col. 376: Richardson _v._ El
Paso Min. Co., 51 Col. 440; Lindsay _v._ Cecchi, 3 Boyce, 133; Toledo
R. Co. _v._ O’Connor, 77 Ill. 391; United States Brewing Co. _v._
Stoltenberg, 211 Ill. 531; Presto-Lite Co. _v._ Skeel, 182 Ind. 593;
Correll _v._ Burlington R. Co., 38 Ia. 120; Schlereth _v._ Missouri R.
Co., 96 Mo. 509; Brannock _v._ Elmore, 114 Mo. 55; Olson _v._ Nebraska
Tel. Co., 83 Neb. 735; Texas R. Co. _v._ Brown, 11 Tex. Civ. App. 503;
Smith _v._ Milwaukee Builders’ Exchange, 91 Wis. 360 _Contra_.

In Evers _v._ Davis, 86 N. J. Law, 196, 202, GARRISON, J., says:

“The question then is, What is, upon common law principles, the effect
of statutes such as the one we are considering upon the action of
negligence? The familiar expressions that the breach of such a statute
is ‘negligence _per se_’ or is ‘_prima facie_ evidence of negligence’
seem to me to postpone elucidation rather than to contribute to it,
while the implication that proof of a breach of a public statute will
support a private recovery is positively misleading.

A fact constantly to be borne in mind in tracing the legal effect of
such statutes is that the negligence that is essential to the action
of negligence is not solely in the overt act that produced the injury
complained of, but may lie in the failure to foresee the danger likely
to result from the doing of such act. ‘Danger, reasonably to be
foreseen at the time of acting, is the established test of negligence’
says the writer already cited. Of negligence of this sort it may be
said that it is common to all phases of the action, which cannot be
said of the mere overt act, which may not be an act of neglect or
omission at all, but, on the contrary, one of affirmative commission,
e. g., the blowing of a locomotive whistle (Bittle _v._ Camden and
Atlantic Railroad Co., 55 N. J. L. 615), the discharge of steam (Mumma
_v._ Easton and Amboy Railroad Co., 73 Id. 653) or the extraordinary
lurching of a train (Burr _v._ Pennsylvania Railroad Co., 64 Id. 30).
But whether the overt act be one of omission or of commission, and
whether the conduct of the defendant be stated in terms of ‘duty’ or
of ‘fault,’ the one common denominator, so to speak, of the action of
negligence is this element of what we may call discoverable danger;
that is to say, a danger that is susceptible of being discovered in
advance of action or inaction by the exercise of that degree of care
which if a man fails to exercise he becomes civilly liable for the
consequences of his conduct. Now, it is precisely upon this element of
discoverable danger that public statutes or ordinances act, and they
do this not by giving to the plaintiff a right of action he did not
have before, but by their operation upon what we may call the common
law conscience of the defendant, better known to us in its personified
form of ‘the ordinary prudent man,’ the familiar fiction designed by
the common law to aid juries, when deciding what was the proper thing
for a man to do, to lose sight of the personal point of view of that
particular man and to base their judgment upon a general standard
which in the final assize is what the jury itself thinks was the
proper thing to do.

Now this ordinary prudent man of common law creation must in the
nature of things be regarded as a law-abiding citizen to whom, as is
pointed out by Dean Thayer in the article referred to, it would be an
unjust reproach to suppose that, knowing the statute—for upon familiar
principles he can claim no benefit from his ignorance of it—he would
break it, _reasonably_ believing that it was a prudent thing for him
to do; and that in all probability no harm would come of it.

In other words, it is inconsistent with ordinary prudence for an
individual to set up his private judgment against that of the lawfully
constituted public authority. We must assume, therefore, that the
ordinary prudent man would not do such a thing since to do so would be
to change his entire nature and to forego the very traits that brought
him into existence. He would, in fine, cease to be the pattern man he
must continue to be in order to be at all.

Upon common law principles, therefore, when the legislature has by
public statute established a certain standard of conduct in order to
prevent a danger that it foresaw, it has in this regard forewarned the
‘ordinary prudent man’ and through him the defendant in a civil
action, whose conduct must always coincide with this common law
criterion. Such danger, therefore, does not have to be proved by the
plaintiff, since there is no longer room for a reasonable difference
of opinion, for by his breach of the statute the defendant, through
his common law conscience, is charged with knowledge that if injury
ensues he will have acted at his peril.

The court therefore should so instruct the jury, whether such
instruction be couched in the terms of the defendant’s duty to perform
or of his culpability for neglect, or of his liability for the result
of his action or inaction, as the case may be; and thus upon common
law principles the plaintiff in an action of negligence obtains the
benefit of the statute if he be one of the class for whose protection
it was enacted and the breach of such statute was the efficient cause
of the injury of which he complains.”

In Smith _v._ Mine & Smelter Co., 32 Utah, 21, 30, FRICK, J., says:

“The court instructed the jury in substance that, if they found from
the evidence that the appellant had violated the city ordinance in
respect to keeping or storing explosives, such violation constituted
negligence per se. Counsel insist that such is not the law; that it
would be _prima facie_ negligence at most. As to whether a violation
of a law or ordinance constitutes negligence _per se_ depends in a
large measure upon the nature of the law or ordinance. When a standard
of duty or care is fixed by law or ordinance, and such law or
ordinance has reference to the safety of life, limb, or property,
then, as a matter of necessity, a violation of such law or ordinance
constitutes negligence. In any case the standard is usually defined as
that degree of care that men of ordinary care and prudence usually
exercise. But, when the standard is fixed by law or ordinance, how can
one be heard to say that he exercised care in exceeding, or in
refraining to comply with, the standard fixed? There is, in such
cases, no comparison to be made. Care and prudence alone cannot
excuse. Exceeding or disregarding the standard of care imposed must be
held to be negligence, if it is anything. If it is held not to be such
_per se_, it simply amounts to this: That it is for the jury to say
whether, in violating a law or ordinance fixing a standard of care to
be observed the law was carefully or negligently violated. The
violation, thus in and of itself, would mean nothing, and one would be
permitted to violate the law with impunity, provided the jury find it
to have been carefully done. Neither is it an answer to say that the
violation may have been caused by the act of God or unavoidable
accident. If such be the case, then the act constituted no violation
in law, and when there is no violation there would be no negligence
arising out of such act or acts alone, and the jury would be required
to find whether the act or acts complained of constituted a violation,
as above indicated, or not. If they found that the law was
disregarded, but that it was occasioned by a higher power or through
unavoidable accident, then there would be no violation by the person
charged, and hence no negligence imputable to him from that act alone.
But if they found that he had violated the law by his own act, or by
the acts of others chargeable to him, then there would be negligence
_per se_. This negligence, however, standing alone, is not civilly
actionable. The negligence must in all cases be found to be the
proximate cause of the injury. The court instructed the jury that
unless they found that the negligence, if they found negligence as
above stated, was the proximate cause of the injury complained of, the
respondent could not recover. This, we think, is a correct statement
of the law pertaining to ordinances such as the one in question here.
We do not hold that a violation of all laws or ordinances constitutes
negligence _per se_, but we do hold that the violation of ordinances
designed for the safety of life, limb, or property, does constitute
negligence _per se_, and this, we think, is supported by the clear
weight of authority.”

It is sometimes said that violation of a duty so imposed is “_prima
facie_ evidence of negligence;” Giles _v._ Diamond State Iron Co., 7
Houst. 453; True _v._ Woda, 104 Ill. App. 15; Wabash R. Co. _v._
Kamradt, 109 Ill. App. 203; Mize _v._ Rocky Mountain Tel. Co., 38
Mont. 521; Briggs _v._ New York R. Co., 72 N. Y. 26; Acton _v._ Reed,
104 App. Div. 507.

A distinction between a statute and a municipal ordinance has been
urged. Philadelphia R. Co. _v._ Ervin, 89 Pa. St. 71; Lederman _v._
Pennsylvania R. Co., 165 Pa. St. 118; Riegert _v._ Thackery, 212 Pa.
St. 86.

In Ubelmann _v._ American Ice Co., 209 Pa. St. 398, 400, BROWN, J.,
says:

“When negligence is charged it must be proved. Proof of the violation
of an ordinance regulating or relating to conduct alleged to have been
negligent is not in itself conclusive proof of the negligence charged.
The ordinance and its violation are matters of evidence, to be
considered with all other evidence in the case: Lane _v._ Atlantic
Works, 111 Mass. 136. But this rule is limited to cases in which the
ordinance relates to the alleged negligent act under investigation.
Here, as stated, it was the use of an alleged defective shifting rod
in the elevator. Ordinances and their violation are admissible, not as
substantive and sufficient proof of the negligence of the defendant,
but as evidence of municipal expression of opinion, on a matter as to
which the municipal authorities had acted, that the defendant was
negligent, and are to be taken into consideration with all the other
facts in the case. Illustrations of this are found in several of our
later cases. In Lederman _v._ Pennsylvania Railroad Co., 165 Pa. 118,
one of the questions was the undue rate of speed at which the
defendant company was running its cars through the city of Lancaster,
and we held that the ordinance in relation to the speed of railway
trains within the city limits had been properly admitted. An ordinance
of the city of Philadelphia requires all vehicles, including bicycles,
to keep to the right, and, in Foote _v._ American Product Co., 195 Pa.
190, where the rider of the bicycle had conformed to this ordinance,
and the driver of the wagon that ran into him had not, we said,
through our Brother Mestrezat: ‘While the ordinance in itself was not
evidence of negligence, it may be considered with other evidence in
ascertaining whether the defendant was guilty of negligence.’ When the
suit is against the municipality itself, and it is charged with
negligence, due to the dereliction of its employees, their violation
or disregard of its own regulations and ordinances relating to the
matter under investigation are proof of such dereliction, though not
necessarily of the specific negligence charged, which, as in all other
cases, must be proved by proper and satisfactory evidence. The
dereliction of the municipal employees is to be taken into
consideration with the other facts in the case, upon proof of which
the plaintiff relies to sustain his allegation of negligence. An
illustration of this is Herron _v._ The City of Pittsburg, 204 Pa.
509, which was an action against the city to recover damages for
personal injuries sustained by a boy from contact with a live, naked
telephone wire used in the police service of the city, and it appeared
that the break in the wire was known to the police officials within an
hour after it had occurred, and that it was also known to them to be
in close proximity to other wires, some of which carried strong and
dangerous currents of electricity. We regarded as proper the admission
of the ordinance of the city and the rules of the police department
relating to the inspection and use of the city wires.

The ordinance of April 10, 1894, provides for the inspection of
elevators by inspectors duly appointed by the city of Philadelphia,
and makes it the duty of the owner or operator of an elevator, after
its inspection, to procure from the inspector a certificate that it is
in condition to be operated, and to expose the certificate to public
view as near as possible to the elevator car. This ordinance does not
make it the duty of one owning or operating an elevator to demand an
inspection, and it is only after the inspector has inspected that he
must procure and expose the certificate. But, even if there had been
an inspection here, and the defendant company had not procured and
exposed the proper certificate, its failure to do so is not the
negligence charged against it that resulted in the plaintiff’s injury,
and the ordinance clearly had no proper place in his evidence.”

_Breach of rules of a private corporation_, see Hoffman _v._ Cedar
Rapids R. Co., 157 Ia. 655; Stevens _v._ Boston R. Co., 184 Mass. 476;
Virginia R. Co. _v._ Godsey, 117 Va. 167.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 317.

Footnote 305:

Arguments omitted.

Footnote 306:

Steel Car Forge Co. _v._ Chec, (C. C. A.) 184 Fed. 868; Great Southern
R. Co. _v._ Chapman, 80 Ala. 615; Lindsay _v._ Cecchi, 3 Boyce, 133;
Gibson _v._ Leonard, 143 Ill. 182; Browne _v._ Siegel, 90 Ill. App. 49
(aff’d on another ground, 191 Ill. 226); Presto-Lite Co. _v._ Skeel,
182 Ind. 593; Kidder _v._ Dunstable, 11 Gray, 342; Curwen _v._
Bofferding, 133 Minn. 28; Koch _v._ Fox, 71 App. Div. 288; Kuhnen _v._
White, 102 App. Div. 36; Ledbetter _v._ English, 166 N. C. 125;
Dobbins _v._ Missouri R. Co., 91 Tex. 60; Stacy _v._ Knickerbocker Ice
Co., 84 Wis. 614; Derouso _v._ International Harvester Co., 157 Wis.
32 _Accord_.

Compare Hartnett _v._ Boston Store, 265 Ill. 331, with Pizzo _v._
Wiemann, 149 Wis. 285; Beauchamp _v._ Burn Mfg. Co., 250 Ill. 303,
with Berdos _v._ Tremont Mills, 209 Mass. 489.

Footnote 307:

In Cowley _v._ Newmarket Local Board, [1892] A. C. 345, 351, Lord
Herschell said:

“My Lords, the question which arises in this action is whether the
defendants are liable in respect of an accident which happened to the
plaintiff, owing to the existence of a drop of eighteen inches in the
level of a footway vested in the defendants, in consequence of which
the plaintiff fell and sustained considerable injury. The difference
of level in the footway arose from a carriage-way having been made for
the purpose of access to Captain Machell’s stable, the yard of which
adjoined the footway. This work was executed by Captain Machell in the
year 1873. The plaintiff in his statement of claim asserted that the
defendants had wrongfully suffered and permitted the footway to be out
of repair and in a condition dangerous to passengers. It appeared
clearly at the trial that there had been no misfeasance on the part of
the defendants. The utmost that could be charged against them was
nonfeasance. It was strongly urged at the bar that the highway
including the footway being vested in the defendants, they were
responsible if it was not kept in proper condition and repair to any
one who was injured by reason of its not being so kept. In support of
their contention they relied mainly on the 144th and 149th sections of
the Public Health Act, 1875. By the former of those sections every
urban authority is to execute the office of surveyor of highways, and
to exercise and be subject to all the powers, duties, and liabilities
of surveyors. By the latter it is provided that the urban sanitary
authority shall from time to time cause all streets vested in them to
be levelled, paved, metalled, flagged, channelled, altered, and
repaired as occasion may require. Amongst the duties thus imposed upon
the urban authority was undoubtedly the duty of keeping this highway
in repair, and it is said that any person injured by the
non-performance of a statutory duty is entitled to recover against the
person on whom that duty rests. I entertain very grave doubts whether
the proposition thus broadly stated can be maintained. The principal
authority in support of it is the decision of the Court of Queen’s
Bench in the case of Couch _v._ Steel, 3 E. & B. 402. But in the case
of Atkinson _v._ Newcastle Waterworks Company, 2 Ex. D. 441, the late
Lord Cairns and Cockburn, C. J., and the present Master of the Rolls
all expressed serious doubts whether the case of Couch _v._ Steel was
rightly decided, and whether the broad general proposition could be
supported, that whenever a statutory duty is created any person who
can show he has sustained injury from the non-performance of that duty
can maintain an action for damages against the person on whom the duty
is imposed. I share the doubt expressed by these learned judges and
the opinion expressed by Lord Cairns that much must ‘depend on the
purview of the Legislature in the particular statute and the language
which they have there employed.’ In the case of Glossop _v._ Heston
and Isleworth Local Board, 12 Ch. D. 102, 109, James, L. J., made some
observations bearing on this point, which seem to me to be of great
weight. In that case the plaintiff claimed an injunction to restrain a
nuisance on the ground that the defendants had neglected to perform
the statutory duty cast on them as the sanitary authority of a
particular district. The learned Lord Justice said: ‘It appears to me
that if this action could be sustained it would be a very serious
matter indeed for every ratepayer in England in any district in which
there is any local authority upon whom duties are cast for the benefit
of the locality. If this action could be maintained, I do not see why
it could not, in a similar manner, be maintained by every owner of
land in that district who could allege that if there had been a proper
system of sewage his property would have been very much improved.’ And
he expressed the opinion that such a contention was not supported
either by principle or authority. It is to be observed that the
Highway Act, which defines the duties of surveyors of highways,
prescribes the mode of proceeding when the duty of repairing the
highway is unfulfilled and the liability which is then to attach to
the surveyor. By sect. 94 he may be summoned before the justices, and
if it appears either upon the report of a person appointed by them to
view, or on their own view, that the highway is not in a state of
thorough and perfect repair, they are to convict the surveyor in a
penalty, and to make an order on the surveyor to repair it within a
limited time; and if the repairs are not made within the time so
limited the surveyor is to forfeit and pay to a person to be named and
appointed in a second order a sum of money equal to the cost of
repairing the highway. I think it, to say the least, doubtful whether,
apart from the reason to which I am about to refer, the contention
that an action lies against the local board for a breach of their
statutory duty to repair the highways can be maintained.”

Sydney Municipal Council _v._ Bourke, [1895] A. C. 433; Maguire _v._
Liverpool Corporation, [1905] 1 K. B. 767 _Accord_. But compare Dawson
_v._ Bingley Urban District Council, [1911] 2 K. B. 149.

_Statutory duty to repair street or sidewalk_, see Manchester _v._
Hartford, 30 Conn. 118; Kirby _v._ Boylston Market, 14 Gray, 249;
Rochester _v._ Campbell, 123 N. Y. 405.

Footnote 308:

“A person who sells, gives away, or disposes of, any poison, or
poisonous substance, without attaching to the vial, box, or parcel
containing such poisonous substance, a label, with the name and
residence of such person, the word ‘poison,’ and the name of such
poison, all written or printed thereon, in plain and legible
characters, is guilty of a misdemeanor.”—Minnesota Penal Code, section
329.

“No person shall sell at retail any poisonous commodity recognized as
such, and especially” [here enumerating various poisons], “without
affixing to the box, bottle, vessel or package containing the same,
and to the wrapper or cover thereof, a label bearing the name ‘poison’
distinctly shown, together with the name and place of business of the
seller.... Any person failing to comply with the requirements of this
section shall be deemed guilty of a misdemeanor, and shall be liable
to a fine of not less than five (5) dollars for each and every such
omission.”—Minnesota Laws, 1885, chap. 147, section 14.

Footnote 309:

Couch _v._ Steel, 3 E. & B. 402; Salisbury _v._ Herchenroder, 106
Mass. 458; Parker _v._ Barnard, 135 Mass. 116; Marino _v._ Lehmaier,
173 N. Y. 530; Westervelt _v._ Dives, 220 Pa. St. 617 _Accord_.
Compare Nugent _v._ Vanderveer, 38 Hun, 487.

See also Great Northern Fishing Co. _v._ Edgehill, 11 Q. B. D. 225.

Footnote 310:

Arguments omitted. Only so much of the opinion is given as relates to
a single point.

Footnote 311:

Groves _v._ Wimborne, [1898] 2 Q. B. 402; Cowen _v._ Story & Clark
Co., 170 Ill. App. 92; Andersen _v._ Settergren, 100 Minn. 294; Schaar
_v._ Conforth, 128 Minn. 460 _Accord_. Compare Stehle _v._ Jaeger
Machine Co., 220 Pa. St. 617; Drake _v._ Fenton, 237 Pa. St. 8.

Footnote 312:

Arguments of counsel omitted.

Footnote 313:

Bischof _v._ Illinois R. Co., 232 Ill. 446; Frontier Steam Laundry Co.
_v._ Connolly, 72 Neb. 767; Hocking R. Co. _v._ Phillips, 81 Ohio St.
453 _Accord_.

_Breach of statutory duty toward third person_, see Gibson _v._
Leonard, 143 Ill. 182; Woodruff _v._ Bowen, 136 Ind. 431; Bott _v._
Pratt, 33 Minn. 323; Kelly _v._ Muhs, 71 N. J. Law, 348; Beehler _v._
Daniels, 19 R. I. 49. Compare Racine _v._ Morris, 201 N. Y. 240.

In Stanley _v._ Atchison R. Co., 88 Kan. 84, MASON, J., says:

“The evidence tended to show these facts: Stanley kept a number of
cattle in a feed lot one side of which was formed by the right-of-way
fence. Employees of the company who were engaged in its repair removed
a part of it, as well as a part of Stanley’s fence which connected
with it, and as a temporary protection strung two wires across the
gap. The protection was insufficient and the cattle escaped. None of
them was injured upon the right of way, but a number strayed and were
not recovered, and others suffered injury, in some cases fatal.

The defendant maintains that in any view of the findings the judgment
ought not to be reversed, for the reason that the petition does not
state a cause of action, because the company was under no obligation
to maintain the fence, except for the purpose of avoiding liability
for animals killed or injured by its trains, and therefore cannot be
held accountable for any other kind of loss occasioned by the want of
a sufficient fence. The original statute upon the subject does not in
terms require a railroad right of way to be fenced. It makes the
company responsible for animals killed or injured by the operation of
its railway irrespective of negligence, except where the road is
enclosed with a lawful fence.... The later statute imposed a duty on
the railroad company to maintain the fence, and it is liable for any
injury of which its neglect of such duty is the proximate cause....

The defendant urges that the purpose of the statute referred to is to
promote safety in the running of trains; that in this purpose is found
the only warrant for imposing upon the railroad company the obligation
to fence its right of way; and that therefore the company’s liability
must be limited to injuries resulting from the operation of the road,
and the state has no power to make it liable for losses occasioned by
the escape of animals which do not meet with any injury upon the right
of way. Assuming that the right of the legislature to require a
railroad company to fence its tracks is based solely upon the
consideration that such fencing may be deemed necessary to diminish
the danger of injury to animals from the operation of trains, and to
persons and property resulting from trains colliding with animals, it
is competent as a means of enforcing such requirement to make the
company liable for losses occasioned to the landowner by the escape of
his cattle through a defective fence, although they pass from the
right of way without injury.”

_Liability to licensee in case of breach of statutory duty as to
condition of premises_, see Sheyer _v._ Lowell, 134 Cal. 357.

_Liability to trespassers_, see Nelson _v._ Burnham & Morrill Co., 114
Me. 213; Flanagan _v._ Sanders, 138 Mich. 253; Hamilton _v._
Minneapolis Desk Co., 78 Minn. 3; Bennett _v._ Odell Mfg. Co., 76 N.
H. 180. Compare Butz _v._ Cavanaugh, 137 Mo. 503.

See Thayer, Public Wrong and Private Action, 27 Harvard Law Rev. 313,
336.

Footnote 314:

By “Lord Tenterden’s Act,” 9 Geo. IV. ch. 14, s. 6, it is provided,
that no action shall be brought to charge any person upon any
representation made concerning the character, conduct, credit,
ability, trade, or dealings of any other person, to the intent that
such other person may obtain credit, money, or goods, unless such
representation “be made in writing, signed by the party to be charged
therewith.” Statutes of a similar nature have been enacted in some of
the United States.

Footnote 315:

Only part of the opinion is printed.

Footnote 316:

Cf. Lillegren _v._ Burns, 135 Minn. 60.

Footnote 317:

Statement abridged. Only part of opinion is given.

Footnote 318:

In Aaron’s Reefs Ltd. _v._ Twiss, [1896] A. C. 273, 280–281, Lord
Halsbury, L. C., says: “I must protest against it being supposed that
in order to prove a case of this character of fraud, and that a
certain course of conduct was induced by it, a person is bound to be
able to explain with exact precision what was the mental process by
which he was induced to act. It is a question for the jury. If a man
said he was induced by such and such an inducement held out in the
prospectus, I should not think that conclusive. It must be for the
jury to say what they believed upon the evidence. Looking at the
evidence in this case, I should say if I were a juryman that this was
a very fascinating prospectus, and was calculated to induce any one
who believed the statements in it to invest his money in the concern.”

In Mathews _v._ Bliss, 22 Pick. 48, Shaw, C. J., says: “The judge
further instructed the jury, that in order to maintain this action,
they must be satisfied that the defendants had made the false
representation, and that the sale was produced by means of it; that it
was not necessary that it should be the sole and only motive inducing
the sale, but it must have been a predominant one. In this particular,
the Court are of opinion, that the direction, as it may have been and
probably was understood by the jury, was not strictly correct; though
it may have been so qualified and illustrated as to prevent the jury
from being misled by it.

The term ‘predominant,’ in its natural and ordinary signification, is
understood to be something greater or superior in power and influence
to others, with which it is connected or compared. So understood, a
predominant motive, when several motives may have operated, is one of
greater force and effect, in producing the given result, than any
other motive. But the Court are of opinion, that if the false and
fraudulent representation was a motive at all, inducing to the act, if
it was one of several motives, acting together, and by their combined
force producing the result, it should have been left to the jury so to
find it. If the false suggestion had no influence, if the plaintiff’s
agent would have done the same thing and made the sale if such
representation had not been made, then it was not a motive to the act,
and the plaintiff’s agent was not induced to sell by means of it. On
the whole, considering that the ordinary and natural meaning of the
term ‘predominant,’ when applied to one among several motives, is such
as has been stated, that the jury may have so understood it, and if
they did so understand it, they may have come to a verdict not
warranted by law, upon the evidence before them, the Court are of
opinion, that the verdict ought to be set aside, and a new trial
granted.”

Footnote 319:

The case has been much abridged, and the greater part of the report
omitted.

Footnote 320:

Cockrill _v._ Hall, 65 Cal. 326; United States Home Co. _v._ O’Connor,
48 Col. 354; Lynch _v._ Hall, 41 Conn. 238; Jones _v._ Crawford, 107
Ga. 318; Hinchey _v._ Starrett, 91 Kan. 181; Oldham _v._ Bentley, 6 B.
Mon. 428; Price _v._ Read, 2 Har. & G. 291; Adams _v._ Anderson, 4
Har. & J. 558; Sweet _v._ Kimball, 166 Mass. 332; Garry _v._ Garry,
187 Mass. 62; McElrath _v._ Electric Investment Co., 114 Minn. 358;
Holmes _v._ Wilkes, 130 Minn. 170; Cerny _v._ Paxton Co., 78 Neb. 134;
Gabriel _v._ Graham, 168 App. Div. 847; American Hosiery Co. _v._
Baker, 18 Ohio Cir. Ct. R. 604; Standard Elevator Co. _v._ Wilson, 218
Pa. St. 280; Bowe _v._ Gage, 127 Wis. 245 _Accord_. See also Wilson
_v._ Yocum, 77 Ia. 569.

Footnote 321:

Arguments and part of opinion omitted.

Footnote 322:

Harriage _v._ Daley, 121 Ark. 23; Dickinson _v._ Atkins, 100 Ill. App.
401; McAllister _v._ Indianapolis R. Co., 15 Ind. 11; Welshbillig _v._
Dienhart, 65 Ind. 94; Long _v._ Woodman, 58 Me. 49; Davis _v._
Reynolds, 107 Me. 61; Bullock _v._ Wooldridge, 42 Mo. App. 356;
Wolters _v._ Fidelity Trust Co., 73 N. J. Law, 57 _Accord_. See also
Bennett _v._ McIntire, 121 Ind. 231.

In Adams _v._ Gillig, 199 N. Y. 314, plaintiff sued in equity for
cancellation of a conveyance procured by falsely representing that
defendant intended to build a dwelling on the land, when his real
intention was to build a garage. Chase, J., said (pp. 320–322): “A
promise as such to be enforceable must be based upon a consideration,
and it must be put in such form as to be available under the rules
relating to contracts and the admission of evidence relating thereto.
It may include a present intention, but as it also relates to the
future it can only be enforced as a promise under the general rules
relating to contracts.

A mere statement of intention is a different thing. It is not the
basis of an action on contract. It may in good faith be changed
without affecting the obligations of the parties. A statement of
intention does not relate to a fact that has a corporal and physical
existence, but to a material and existing fact nevertheless not
amounting to a promise but which as in the case under discussion
affects and determines important transactions. The question here under
discussion is not affected by the rules relating to the admission of
testimony. As it was not promissory and contractual in its nature
there is nothing in the rules of evidence to prevent oral proof of the
representations made by the defendant to the plaintiff. In an action
brought expressly upon a fraud, oral evidence of facts to show the
fraud is admissible. (Pomeroy’s Equity Jurisprudence, Sec. 889.)

This case stands exactly as it would have stood if the plaintiff and
defendant before the execution and delivery of the deed had entered
into a writing by which the defendant had stated therein his intention
as found by the court on the trial and the plaintiff had stated her
acceptance of his offer based upon her belief and faith in his
statement of intention, and it further appeared that the statement was
so made by the defendant for the purpose of inducing the plaintiff to
sell to him the lot, and that such statement was so made by him
falsely, fraudulently and purposely for the purpose of bringing about
such sale.

Intent is of vital importance in very many transactions. In the
criminal courts it is necessary in many cases for jurors to determine
as a question of fact the intent of the person charged with the crime.
Frequently the life or liberty of the prisoner at the bar depends upon
the determination of such question of fact. In civil actions relating
to wrongs, the intent of the party charged with the wrong is
frequently of controlling effect upon the conclusion to be reached in
the action. The intent of a person is sometimes difficult to prove,
but it is nevertheless a fact and a material and existing fact that
must be ascertained in many cases, and when ascertained determines the
rights of the parties to controversies. The intent of Gillig was a
material existing fact in this case, and the plaintiff’s reliance upon
such fact induced her to enter into a contract that she would not
otherwise have entered into. The effect of such false statement by the
defendant of his intention cannot be cast aside as immaterial simply
because it was possible for him in good faith to have changed his mind
or to have sold the property to another who might have a different
purpose relating thereto. As the defendant’s intention was subject to
change in good faith at any time it was of uncertain value. It was,
however, of some value. It was of sufficient value so that the
plaintiff was willing to stand upon it and make the conveyance in
reliance upon it.

The use of property in a particular manner changes from time to time
and restrictive covenants of great value at one time may become a
source of serious embarrassment at a later date. The fact that
restrictive covenants cannot ordinarily be drawn to bend to changed
conditions has made many purchasers disinclined to accept conveyances
with such covenants. A restrictive covenant in a deed may be of
sufficient importance to justify a refusal by a contractee to accept a
conveyance subject to such conditions. A person in selling property
may be quite willing to execute and deliver a deed thereof without
putting restrictive covenants therein and in reliance upon the good
faith of express, unqualified assurances of the present intention of
the prospective purchaser. In such case the intention is material and
the statement of such intention is the statement of an existing fact.

Unless the court affirms this judgment, it must acknowledge that
although a defendant deliberately and intentionally, by false
statements, obtained from a plaintiff his property to his great damage
it is wholly incapable of righting the wrong, notwithstanding the fact
that by so doing it does in no way interfere with the rules that have
grown up after years of experience to protect written contracts from
collateral promises and conditions not inserted in the contract.

We are of the opinion that the false statements made by the defendant
of his intention should, under the circumstances of this case, be
deemed to be a statement of a material, existing fact of which the
court will lay hold for the purpose of defeating the wrong that would
otherwise be consummated thereby.”

Footnote 323:

Butler _v._ Watkins, 13 Wall. 456; Rogers _v._ Virginia-Carolina
Chemical Co., (C. C. A.) 149 Fed. 1; Sallies _v._ Johnson, 85 Conn.
77; McLaughlin _v._ Thomas, 86 Conn. 252; Olson _v._ Smith, 116 Minn.
430; Herndon _v._ Durham R. Co., 161 N. C. 650; Blackburn _v._
Morrison, 29 Okl. 510 _Accord_.

Grubb _v._ Milan, 249 Ill. 456; Murray _v._ Smith, 42 Ill. App. 548;
Chambers _v._ Mitchell, 123 Ill. App. 595; Younger _v._ Hoge, 211 Mo.
444 _Contra_.

In Commonwealth _v._ Althause, 207 Mass. 32, 47–49, Loring, J., says:
“As a general proposition of law apart from statutes making it a crime
to obtain property by a false pretence, it would seem that a man’s
present intention as to a future act is a fact. Edgington _v._
Fitzmaurice, 29 Ch. D. 459. Swift _v._ Rounds, 19 R. I. 527. In the
first of these two cases (Edgington _v._ Fitzmaurice) Bowen, L. J.,
said, at p. 483: ‘The state of a man’s mind is as much a fact as the
state of his digestion.’ And Chapman, C. J., in Commonwealth _v._
Walker, 108 Mass. 309, 312, said: ‘A man’s intention is a matter of
fact, and may be proved as such....’

But in the case at bar the presiding judge went beyond any decided
case in the explanation which he gave of the difference between the
representation of a person’s present intention as to a future act and
an assurance or promise that the future act shall be done. For the
purpose of illustrating the essential difference between the two he
put as an example of obtaining property by a false pretence a case
which is not obtaining property by a false pretence. In effect he told
the jury that if A buys property intending not to pay for it he
obtains that property by a false pretence. In that case A makes no
representation at all. All that he does is to make a promise, and a
promise is not a representation of a fact. It has been sought to make
out that in legal contemplation a promise with an intention not to
perform is a false pretence because a promise to do a thing of
necessity implies a present intention to do it, and therefore whenever
you have a promise coupled with an intent not to perform you have an
implied false representation of an intention to do the act which the
defendant promised to do and so a false pretence. And this finds some
apparent support in Swift _v._ Rounds, 19 R. I. 527. In that case it
was held that where a defendant buys property intending not to pay for
it he is liable in an action of deceit because he impliedly represents
that he intends to pay for it by the act of buying. It may be doubted
whether the making of a promise implies of necessity in all cases a
present intention to perform that promise. Upon that question we do
not find it necessary to express an opinion. For however that may be,
the fraud of obtaining property by buying it intending not to pay for
it is not, as matter of construction of the statute creating it, the
crime of obtaining property by a false pretence.... It is evident that
the fraud (which by enacting that statute the Legislature intended to
make a crime) was obtaining the property of another by a false
statement of a fact; and it is equally evident that in enacting it the
Legislature did not have in mind the fraud of buying goods not
intending to pay for them. Both are frauds but they are not the same
fraud. In our opinion it was the former alone which the Legislature
had in mind in making it a crime to obtain property by a false
pretence.”

_As to whether intention at the time of the contract or at the time of
delivery of the goods_ is to be regarded, see _In re_ Levi, 148 Fed.
654; Whitten _v._ Fitzwater, 129 N. Y. 626.

Footnote 324:

See Gardner _v._ State, 4 Ala. App. 131; Syracuse Knitting Co. _v._
Blanchard, 69 N. H. 447.

Footnote 325:

Statement abridged. Part of opinion omitted.

Footnote 326:

As to “promissory representations,” see also Sawyer _v._ Prickett, 19
Wall. 146; Sallies _v._ Johnson, 85 Conn. 77; Carter _v._ Orne, 112
Me. 365; Pedrick _v._ Porter, 5 All. 324; Pile _v._ Bright, 156 Mo.
App. 301.

_Known impossible prophecy by one having superior knowledge_, see
Murray _v._ Tolman, 162 Ill. 417; French _v._ Ryan, 104 Mich. 625;
Hedin _v._ Minneapolis Institute, 62 Minn. 146.

Footnote 327:

Only part of the case is given.

Footnote 328:

But see Davis _v._ Reynolds, 107 Me. 61.

In Van Epps _v._ Harrison, 5 Hill, 63, 70–71, Bronson, J., says: “If
an affirmation concerning the cost of the property was of any
consequence, I think the defendant should have taken the trouble to
inquire and satisfy himself. But I cannot think it a matter of any
legal importance. It was only another mode of asserting that the
property was of the value of $32,000; and all the books agree that no
action will lie if such an affirmation prove false. It is the folly of
the purchaser to trust to it. Indeed, the representation here amounts
to less than a direct affirmation of value, for it only asserts that
the plaintiff and another man agreed that such was the value. It would
lead to great mischief to allow men to annul contracts upon such a
ground. If the defendant could make out that the plaintiff was his
agent in purchasing from Van Rensselaer, then what the plaintiffs said
about the price he paid might be material; but not in any other point
of view.

Such are my views upon this branch of the case; but my brethren are of
opinion that the false affirmation concerning the price paid for the
land furnishes a good ground of action. There must, therefore, be a
new trial upon this point, as well as the one relating to the
condition of the land.”

_As to “puffing,”_ see: Mumford _v._ Tolman, 157 Ill. 258; Miller _v._
Craig, 36 Ill. 109; Wightman _v._ Tucker, 50 Ill. App. 75; Woods _v._
Nicholas, 92 Kan. 258; Buckingham _v._ Thompson, 135 S. W. 652.

But see Pratt _v._ Judge, 177 Mich. 558; Adams _v._ Soule, 33 Vt. 538.

_Statements as to value_, see: Harvey _v._ Young, Yelverton, 21; Lake
_v._ Loan Assn., 72 Ala. 207; Stevens _v._ Alabama Land Co., 121 Ala.
450; Kincaid _v._ Price, 82 Ark. 20; Williams _v._ McFadden, 23 Fla.
143; Noetling _v._ Wright, 72 Ill. 390; Cagney _v._ Cuson, 77 Ind.
494; Bossingham _v._ Syck, 118 Ia. 192; Else _v._ Freeman, 72 Kan.
666; Reynolds _v._ Evans, 123 Md. 365; Picard _v._ McCormick, 11 Mich.
68; Doran _v._ Eaton, 40 Minn. 35; Boasberg _v._ Walker, 111 Minn.
445; Union Bank _v._ Hunt, 76 Mo. 439; Dalrymple _v._ Craig, 149 Mo.
345; Dresher _v._ Becker, 88 Neb. 619; Sandford _v._ Handy, 23 Wend.
260; Ellis _v._ Andrews, 56 N. Y. 83; Van Slochem _v._ Villard, 207 N.
Y. 587; Mecum _v._ Becker, 166 App. Div. 793; Campbell _v._ Zion’s
Real Estate Co., 46 Utah, 1; Shanks _v._ Whitney, 66 Vt. 405.

Compare Moon _v._ Benton, 13 Ala. App. 473; Pate _v._ Blades, 163 N.
C. 267; Crompton _v._ Beedle, 83 Vt. 287.

Footnote 329:

Portions of the opinion are omitted.

Footnote 330:

Gordon _v._ Butler, 105 U. S. 553; Kimber _v._ Young, (C. C. A.) 137
Fed. 744; Pittsburgh Life & Trust Co. _v._ Northern Ins. Co., 140 Fed.
888, 148 Fed. 674; Dotson _v._ Kirk, (C. C. A.) 180 Fed. 14; Rendell
_v._ Scott, 70 Cal. 514; Wrenn _v._ Truitt, 116 Ga. 708; Dowden _v._
Wilson, 108 Ill. 257; Curry _v._ Keyser, 30 Ind. 214; Conant _v._
Nat’l State Bank, 121 Ind. 323; Scroggin _v._ Wood, 87 Ia. 497; Vokes
_v._ Eaton, 119 Ky. 913; Holbrook _v._ Connor, 60 Me. 578; Bishop _v._
Small, 63 Me. 12; Donnelly _v._ Baltimore Trust Co., 102 Md. 1; Mooney
_v._ Miller, 102 Mass. 217; Nash _v._ Minnesota Title & Trust Co., 159
Mass. 437; Lynch _v._ Murphy, 171 Mass. 307; Nowlin _v._ Snow, 40
Mich. 699; Myers _v._ Alpena Loan Ass’n, 117 Mich. 389; Getchell _v._
Dusenbury, 145 Mich. 197; Perkins _v._ Trinka, 30 Minn. 241; Brown
_v._ South Joplin Min. Co., 194 Mo. 681; Ray County Bank _v._ Hutton,
224 Mo. 42; Fisher _v._ Seitz, 172 Mo. App. 162; Duffany _v._
Ferguson, 66 N. Y. 482; Hatton _v._ Cook, 166 App. Div. 257; Pritchard
_v._ Dailey, 168 N. C. 330; Martin _v._ Eagle Creek Development Co.,
41 Or. 448; Watts _v._ Cummins, 59 Pa. St. 84; Horrigan _v._ First
Nat. Bank, 9 Baxt. 137; Jude _v._ Woodburn, 27 Vt. 415; Randall _v._
Farnum, 52 Vt. 539; Romaine _v._ Excelsior Machine Co., 54 Wash. 41;
Crislip _v._ Cain, 19 W. Va. 438 _Accord_.

Compare Wall _v._ Graham, 192 Ala. 396; Barron Estate Co. _v._
Woodruff Co., 163 Cal. 561; Phelps _v._ Grady, 168 Cal. 73; Sleeper
_v._ Smith, 77 N. H. 337; Olston _v._ Oregon R. Co., 52 Or. 343.

_Opinion of third person_, see Adams _v._ Collins, 196 Mass. 422.

Footnote 331:

Jarratt _v._ Langston, 99 Ark. 438; Baum _v._ Holton, 4 Col. App. 406;
Shelton _v._ Healy, 74 Conn. 265; Kenner _v._ Harding, 85 Ill. 264;
Dwight _v._ Chase, 3 Ill. App. 67; Wightman _v._ Tucker, 50 Ill. App.
75; Coulter _v._ Clark, 160 Ind. 311; Stauffer _v._ Hulwick, 176 Ind.
410; Beck _v._ Goar, 180 Ind. 81; Automobile Co. _v._ Crowell, 149 N.
W. 861; Hetland _v._ Bilstad, 140 Ia. 411; Picard _v._ McCormick, 11
Mich. 68; Nowlin _v._ Snow, 40 Mich. 699; McDonald _v._ Smith, 139
Mich. 211; Conlan _v._ Roemer, 52 N. J. Law, 53; Bacon _v._ Frisbie,
15 Hun, 26; Marshall _v._ Seelig, 49 App. Div. 433; Ganow _v._ Ashton,
32 S. D. 458; Rodee _v._ Seaman, 33 S. D. 184; Rorer Iron Co. _v._
Trout, 83 Va. 397; Fitzgerald _v._ Frankel, 109 Va. 603; Grant _v._
Huschke, 74 Wash. 257 _Accord_.

Footnote 332:

Winkler _v._ Jerrue, 20 Cal. App. 555; Hodgkins _v._ Dunham, 10 Cal.
App. 690; Olvey _v._ Jackson, 106 Ind. 286; Crane _v._ Elder, 48 Kan.
259; Gurney _v._ Tenney, 197 Mass. 457; Van de Wiele _v._ Garbade, 60
Or. 585; Corey _v._ Boynton, 82 Vt. 257; Simons _v._ Cissna, 52 Wash.
115 _Accord_. Compare Foster _v._ Kennedy, 38 Ala. 359; Sheer _v._
Hoyt, 13 Cal. App. 662; Judy _v._ Jester, 53 Ind. App. 74; Burr _v._
Willson, 22 Minn. 206; Adan _v._ Steinbrecher, 116 Minn. 174.

Footnote 333:

Arguments omitted.

Footnote 334:

See also Nevada Bank _v._ Portland Nat. Bank, 59 Fed. 338.

In Aaron’s Reefs _v._ Twiss, [1896] A. C. 273, Lord Halsbury, L. C.,
said (pp. 283–284): “I do not think any particular form of words is
necessary to convey a false impression. Supposing a person goes to a
bank where the people are foolish enough to believe his words, and
says, ‘I want a mortgage upon my house, and my house is not completed,
but in the course of next week I expect to have it fully completed.’
Suppose there was not a house upon his land at all, and no
possibility, therefore, that it could be fully completed next week,
can anybody say that that was not an affirmative representation that
there was a house which was so near to completion that it only
required another week’s work upon it to complete it? Could anybody
defend himself if he was charged upon an indictment for obtaining
money under false pretences, the allegation in the indictment being
that he pretended that there was a house so near completion that it
only required a week’s work upon it, by saying that he never
represented that there was a house there at all? So here, when I look
at the language in which this prospectus is couched, and see that it
speaks of a property which requires only the erection of machinery to
be either at once or shortly in a condition to do work so as to obtain
all this valuable metal from the mine, it seems to me that, although
it is put in ambidextrous language, it means as plainly as can be that
this is now the condition of the mine, that such and such additions to
it will enable it shortly to produce all those great results, and that
that is a representation of an actually existing fact. I should quite
agree with the proposition that the Lord Chancellor of Ireland and the
Master of the Rolls put forward—if you are looking to the language as
only the language of hope, expectation, and confident belief, that is
one thing; but it does not seem to have been in the minds of the
learned judges that you may use language in such a way as, although in
the form of hope and expectation, it may become a representation as to
existing facts; and if so, and if it is brought to your knowledge that
these facts are false, it is a fraud.”

Footnote 335:

The statement has been abridged.

Footnote 336:

Loewer _v._ Harris, (C. C. A.) 57 Fed. 368; King _v._ White, 119 Ala.
429; Christy _v._ Campbell, 36 Col. 261; Kronfeld _v._ Missal, 87
Conn. 491; James _v._ Crosthwait, 97 Ga. 673; Gordon _v._ Irvine, 105
Ga. 144; Aortson _v._ Ridgway, 18 Ill. 23; Dayton _v._ Kidder. 105
Ill. App. 107; Craig _v._ Hamilton, 118 Ind. 565; Firestone _v._
Werner, 1 Ind. App. 293; Coles _v._ Kennedy, 81 Ia. 360; Howerton _v._
Augustine, 130 Ia. 389; Nairn _v._ Ewalt, 51 Kan. 355; Faris _v._
Lewis, 2 B. Mon. 375; Weikel _v._ Sterns, 142 Ky. 513; Prentiss _v._
Russ, 16 Me. 30; Barrett _v._ Lewiston R. Co., 110 Me. 24; Johnston
_v._ Cope, 3 Har. & J. 89; Burns _v._ Dockray, 156 Mass. 135; Batty
_v._ Greene, 206 Mass. 561; Kenyon _v._ Woodruff, 33 Mich. 310;
Tompkins _v._ Hollister, 60 Mich. 470; Busch _v._ Wilcox, 82 Mich.
315; Marsh _v._ Webber, 13 Minn. 109; Thomas _v._ Murphy, 87 Minn.
358; McAdams _v._ Cates, 24 Mo. 223; Morley _v._ Harrah, 167 Mo. 74;
Manter _v._ Truesdale, 57 Mo. App. 435; Stevens _v._ Fuller, 8 N. H.
463; Fleming _v._ Slocum, 18 Johns. 403; Allen _v._ Addington, 7 Wend.
9; March _v._ First National Bank, 4 Hun, 466; Brown _v._ Gray, 6
Jones Law, 103; Lunn _v._ Shermer, 93 N. C. 164; Gidney _v._ Chappell,
26 Okl. 737; Fitzhugh _v._ Nirschl, 77 Or. 514; Rheen _v._ Naugatuck
Wheel Co., 33 Pa. St. 356; Cardwell _v._ McClelland, 3 Sneed, 150;
Allison _v._ Tyson, 5 Humph. 449; Graham _v._ Stiles, 38 Vt. 578;
Maynard _v._ Maynard, 49 Vt. 297; Crompton _v._ Beedle, 83 Vt. 287;
Jarrett _v._ Goodnow, 39 W. Va. 602; Morgan _v._ Hodge, 145 Wis. 143
_Accord_. Compare: Randolph _v._ Allen, (C. C. A.) 73 Fed. 23; Ball
_v._ Farley, 81 Ala. 288; Cherry _v._ Brizzolara, 89 Ark. 309; Roper
_v._ Sangamon Lodge, 91 Ill. 518; Potts _v._ Chapin, 133 Mass. 276;
Cochrane _v._ Halsey, 25 Minn. 52; Crowell _v._ Jackson, 53 N. J. Law,
656; Babcock _v._ Libbey, 82 N. Y. 144; Jones _v._ Stewart, 62 Neb.
207; Wicker _v._ Worthy, 51 N. C. 500; Harris _v._ Tyson, 24 Pa. St.
347; Iron Bank _v._ Anderson, 194 Pa. St. 205; Bishop _v._ Buckley, 33
Pa. Super. Ct. 123; Campbell _v._ Kinlock, 9 Rich. Law, 300.