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.
[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.
[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.
[333]. Arguments omitted.
[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.”
[335]. The statement has been abridged.
[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.
In Wiser v. Lawler, 189 U. S. 260, Brown, J., said (pp. 264–65): “Attached to these prospectuses was a map entitled ‘Map of the group of mines belonging to the Seven Stars Gold Mining Company.’ It is true that there is neither in the prospectuses nor in the map a distinct assertion that the legal title to the properties mentioned was vested in the Seven Stars Company; but we think that no one can read them without inferring and believing that the Seven Stars was the owner of these properties, and that the net proceeds of their operation would be distributed in dividends to stockholders. As they were circulated as an inducement to take stock in the enterprises, we are bound to interpret them by the effect they would produce upon an ordinary mind. Andrews v. Mockford, (1896) 1 Q. B. D. 372. They were, however, even more damaging in their omissions than in their statements. No mention was made of the fact that the title to these properties stood in the names of Lawler and Wells; no allusion to the Cowland agreement, with its provisions for forfeiture, nor to the fact that the only interest of the company was an equitable right to the properties after the sum of $450,000 had been realized from the profits and paid to defendants. In estimating the probability of subscribers being misled by these prospectuses we may take into consideration not only the facts stated, but the facts suppressed. New Brunswick Co. v. Muggeridge, 1 Drewey & Smale, 363. They are entitled to know the cons as well as the pros. Gluckstein v. Barnes, (1900) App. Cas. 240; Hubbard v. Weare, 79 Iowa, 678; Hayward v. Leeson, 175 Mass. 310; In re Leeds and Hanley Theatres, (1902) 2 Ch. Div. 809.”