302. Only part of case is given. Argument omitted.

303. Statement and arguments omitted.

304. Wright v. Malden R. Co., 4 All. 283; Nelson v. Burnham & Morrill Co., 114 Me. 213; Fluker v. Ziegele Brewing Co., 201 N. Y. 40; Beck v. Vancouver R. Co., 25 Or. 32 Accord. See also Newcomb v. Boston Protective Department, ante, p. 391; Bourne v. Whitman, ante, p. 400, note 1.

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.

305. Arguments omitted.

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.

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.

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.

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.

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

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.

312. Arguments of counsel omitted.

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.

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.

315. Only part of the opinion is printed.

316. Cf. Lillegren v. Burns, 135 Minn. 60.

317. Statement abridged. Only part of opinion is given.

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.”

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

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.

321. Arguments and part of opinion omitted.

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.”

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.

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

325. Statement abridged. Part of opinion omitted.

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.

327. Only part of the case is given.

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.

329. Portions of the opinion are omitted.

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.