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.”