(x) Strangways v. Bishop, 29 L. T. O. S. 120.

(y) Smith v. Land and House Property Corp., 28 Ch. D. 7 ; and see Tibbatts v. Boulter, 73 L. T. 534, where the representation was that certain licensed property was subject to mortgages for particular sums, and that the mortgagees were willing to allow these amounts to remain on the security.

(z) Fenton v. Browne, 14 Ves. 144.

(a) Magennis v. Fallon, 2 Moll. 561, 587.

(b) See also above, p. 687.

Promise not properly a representation.

3. The representation must be of some fact.

(c) Smith v. Chadwick, 9 App. Cas. 187.

(d) See cases cited at the end of note (s) to p. 699, above.

(e) Expte. Burrell, 1 Ch. D. 537, 552. See next note.

(f) It has been held that a representation made by a party to a proposed contract of his intention to do some act, but not amounting to a promise to do the act, may, if unfulfilled, be a ground for resisting the specific performance of the contract; Myers v. Watson, 1 Sim. N. S. 523; S. C, nom. Rose v. Watson, 10 H. L. C. 671, 681, 682; Lamare v. Dixon, L. R. 6 H. L. 414, 428; or even for avoiding the contract; Traill v. Baring, 4 De G. J. & S. 318. These decisions appear inconsistent with the law laid down in Jorden v. Money, 5 H. L. C. 185; Maddison v. Alderson, 8 App. Cas. 467, 473; and they are criticised in Pollock on Contract, 525, 718 - 720, 7th ed. It certainly appears that in those cases it would have been more consistent with principle to treat the representation according to the common law doctrine as a collateral promise. And indeed it was stated by Lord Westbury in Rose v. Watson, 10 H. L. C. 681, 682, that the representation was regarded in equity as a substantial part of the contract. But it has been held that a false statement as to a man's intention may be a representation of fact, since it is a representation as to the state of his mind, and may at least give rise to liability if made fraudulently. Thus it is considered that if a man contract to buy goods with the intention of not paying for them, that is a fraud sufficient to justify the avoidance of the contract on the vendor's part; Load v. Green, 15 M. & W. 216; Clough v. London & North Western Ry. Co., L. R. 7 Ex. 26; Expte. Whittaker, L. R. 10 Ch. 446, 449. And it has been decided that a false statement made knowingly (that is, fraudulently) by the directors of a company inviting subscription to debentures, that it was intended to apply the money so borrowed to a particular purpose, was a statement of fact and a good cause of action of deceit against them; Edgington v. Fitz-maurice, 29 Ch. D. 459. As to a false statement of a person's motive in agreeing to buy or sell at a particular price, see Vernon v. Keys, 12 East, 632, 4 Taunt. 488, criticised in Benjamin on Sale, 356-358, 2nd ed., and Pollock on Contract, 563, 564, 7th ed.; Lindsay Petroleum Co. v. Hard, L. R. 5 P. C. 221, 243. Statement of belief that some event will happen in the future must of course be carefully distinguished from statement that some event has happened in the past; Bellairs v. Tucker, 13 Q. B. D. 562.

(g) Lewis v. Jones, 4 B. & C. 506, 512 (cf. above, p. 673); Rash-dall v. Ford, L. R. 2 Eq. 750; Beattie v. Ebury, L. R. 7 Ch. 777, 800, 7 H. L. 102, 130;

Representation of intention, whether a representation of fact.

4. The fact must be material.

5. The representation must be made by a party to the contract, or his agent.

Eaglesfield v. Londonderry, 4 Ch. D. 693, 709; Halbot v. Lens, 1901, 1 Ch. 344, 350; Harse v. Pearl, etc. Co., 1904, 1 K. B. 558.

{h) Above, pp. 577, 578; and see Hume v. Pocock, L. R. 1 Ch. 379, 385, where the contract was held to be for the purchase of such interest as the vendor had (see above p. 163); Richardson v. Williamson, L. R. 6 Q. B. 276; Mostyn v. West Mostyn Coal and Iron Co., Ld., 1 C. P. D. 145; West London Commercial Bank v. Kitson, 13 Q. B. D. 360; cf. above, p. 697.

(i) Above, pp. 157, 158, 640, 641.

(k) Hirschfield v. London, Brighton, etc. Ry. Co., 2 Q. B. D. 1, 5, 6 ; Bowen, L. J., West London Commercial Bank v. Kitson, 13 Q. B. D. 360, 362, 363.

(I) Above, pp. 733, 734.

(m) See above, p. 722.

(n) See Smith v. Kay, 7 H. L. C. 750, 759, 769, 770, 775; Smith v. Land and House Property Corp., 28 Ch. D. 7; Gordon v. Street, 1899, 2 Q. B. 641. 646.

(o) See Magennis v. Fallon, 2 Moll. 561, 587; Scott v. Hanson, 1 Sim. 13, in which case however it is doubtful whether the law laid down was correctly applied to the particular facts. Under the present law of misrepresentation (above, pp. 731, 732) the decision would scarcely be the same.

(p) Luryan's case, 1902, 1 Ch. 707.

False representation by agent.

(q) Abinger, C. B., Cornfoot v. Fowke, 6 M. & W. 358, 380 sq.; Western Bank of Scotland v. Addie, L. R. 1 Sc. 145, 158; Benjamin on Sale, 371, 375, 2nd ed.; Mullens v. Miller. 22 Ch. D. 194;

Smith v. Land and House Property Corp., 28 Ch. D. 7, 13.

(r) See above, pp. 686, 734. (s) See previous note. (t) Above, v. 732.

(u) Wilde v. Gibson, 1 H. L. C. 605, 616, 617, 633, 634; Brownlie v. Campbell, 5 App. Cas. 925, 937, 938; see below, pp. 740, 741. It is submitted that the decision of Rolfe, Alderson, and Parke, BB., in Cornfoot v. Fowke, 6 M. & W. 358, is good law if confined to the point that, where it is necessary to prove a fraudulent misrepresentation as a ground for rescinding a contract, and the misrepresentation was in fact made innocently by an agent and not expressly authorised by the principal, conduct actually fraudulent on the part of the principal must be shown. In that case the defendant, wishing to take a short lease of a furnished house, asked an agent employed to let it for the plaintiff, if there were anything objectionable about the house. The agent answered, "Nothing whatever"; he honestly believed this to be true. The house was in fact next door to a brothel; but the agent did not know this. The plaintiff knew it, but had not expressly authorised the agent to make the statement. The defendant found out the untruth of the statement on the day after he had signed an agreement to take the house for two years, and immediately repudiated the agreement and declined to take possession. The plaintiff afterwards sued for the rent due under the agreement; and the defendant pleaded that he was induced to enter into the agreement by the fraud of the plaintiff and others in collusion with him. It was held, that to support this plea, it was not enough to show that the plaintiff's agent innocently made a false representation, which the plaintiff knew to be untrue, but did not expressly authorise: but the defendant must show that the plaintiff himself had acted fraudulently. Substantially, however, the facts there alleged appear to have been sufficient to give the defendant a right to relief under the common law as to innocent misrepresentation. That is to say that, if he had relied on the agent's representation as forming a part of the contract, he might have established the right to rescind it before it had been executed in his favour (and apparently it had not been so executed, since he had not taken possession; see Mostyn v. West Mostyn Coal and Iron Co., 1 C. P. D. 145); or if the agreement had been so performed he might have recovered damages for breach of warranty that the representation was true; see 6 M. & W. 369, 372, 373; National Exchange Co. v. Drew, 2 Macq. 103, 108, 109, 145; Willes, J., Barwick v. English Joint Stock Bank, L. R. 2 Ex. 259, 262; above, pp. 724, 727, 728. Under the present law of rescission for innocent misrepresentation, it can scarcely be doubted that a party to a contract for the sale of land would be entitled, if misled in the same circumstances as the defendant in Cornfoot v. Fowke, to rescind the contract before completion : but if he were to claim rescission after completion, it appears that the decision in that case would still be in point. It is thought however that he might, after completion, recover damages for breach of the warranty implied by the representation; Be Lassalle v. Guildford, 1901, 2 K. B. 215.