Philip Pendleton Barbour

“ We think we may safely lay down this principle, that wherever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has never seen, but which he buys upon the representation of the seller, relying on its truth, then the representation, in effect, amounts to a warranty; at least, that the seller is bound to make good the representation. No part of the resoning of the cases which we have been reviewing applies to such a case ”

“ We do not mean to say, that a continuous exposure of the vein for one hundred feet was implied by the use of the term developed; on the contrary, we are of opinion, from the evidence, that the sinking shafts, or making cuts, at intervals, for that distance, would satisfy the meaning of this expression, and that we think was done. But we mean to say, that although there was a small quantity of ore found in part of this vein, which was rich, yet in any one of the pits it was relatively a small proportion ”

“ Suppose a silver service sold with all faults, and it turns out to be plated; can there be any doubt that the vendor would be liable? With all faults, must mean, which it may have consistently with its being the thing described. Here, the ship was not a copper fastened ship at all; and therefore the verdict was right. This case decides, that even where the plaintiff had a full opportunity of examination, the term, all faults, did not exempt the seller from liability for any defect but what was consistent with its being the thing described ”

“ Whether the party thus misrepresenting a fact, knew it to be false, or made the assertion without knowing whether it were true or false, is wholly immaterial; for the affirmation of what one does not know, or believe to be true, is equally in morals and law, as unjustifiable as the affirmation of what is known to be positively false. ”

“ In the letter from the appellant to Nathaniel Richards, under date of January 21st, 1833, in which he professes to give an account and his views of the Goochland mine, amongst other things, he states that there has been upwards of one hundred feet on the vein developed, which proves to be very rich indeed, much richer than any thing yet discovered in the United States ”

“ In this latter case the following strong language is used. 'No doubt, by a representation a party may bind himself just as much as by an express covenant. If, knowingly, he represents what is not true, no doubt he is bound. If, without knowing that it is not true, he takes upon himself to make a representation to another, upon the faith of which that other acts, no doubt he is bound ”

“ In 1 Story's Equity, 201, 202, it is thus stated. 'Where the party intentionally, or by design, misrepresents a material fact, or produces a false impression, in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him; in every such case there is a positive fraud, in the truest sense of the terms; there is an evil act, with an evil intent ”

“ Having made a personal examination, he declares the formation to be wide, gives the actual width in one place, and then the width of the veins, in terms not of conjecture, but of the most positive assertion. He gives their dimensions by feet and inches. ”

“ In that case the chancellor says: whether the defendant made the statements in his letter to Fulton through mistake, or under the delusions of his own imagination, or by design, I am not able to say. It is sufficient for the decision of this case, that the representations are not supported, but are contradicted by proof, and that the claim of the annuity, upon such a state of the case, is unconscientious and unjust. ”

“ But Lord Ellenborough, disapproving of the doctrine of the case above cited; held that where a ship is sold with all faults, the seller is not liable to an action, in respect of latent defects which he knew of without disclosing at the time of the sale, unless he used some artifice to conceal them from the purchaser. ”

“ Cases of this class present the principle in its strongest aspect; because in these cases, the parties making the representation were bound by it to prevent a loss to others, although they themselves derived no advantage from it; whereas, in those instances in which the parties to the contract made the representation, they would receive benefit to the amount of the loss which the misrepresentation would produce to the other party, who acted on the faith of it; if the Court did not relieve against it.
This principle has been adopted in the Courts of our own country. In Fulton's executors vs. ”