It is very different when there is fraud. Fraud may as well lead
to the making of a contract by a statement outside the contract
as by one contained in it. But the law would hold the contract
not less conditional on good faith in one case than in the other.
To illustrate, we may take a somewhat extreme case. A says to B,
I have not opened these barrels myself, but they contain No. 1
mackerel: I paid so much for them to so and so, naming a
well-known dealer. Afterwards A writes B, I will sell the barrels
which you saw, and their [324] contents, for so much; and B
accepts. The barrels turn out to contain salt. I suppose the
contract would be binding if the statements touching the contents
were honest, and voidable if they were fraudulent.
Fraudulent representations outside a contract can never, it would
seem, go to anything except the motives for making it. If outside
the contract, they cannot often affect its interpretation. A
promise in certain words has a definite meaning, which the
promisor is presumed to understand. If A says to B, I promise you
to buy this barrel and its contents, his words designate a person
and thing identified by the senses, and they signify nothing
more. There is no repugnancy, and if that person is ready to
deliver that thing, the purchaser cannot say that any term in the
contract itself is not complied with.
Pages:
379
380
381
382
383
384
385
386
387
388
389
390
391
392
393
394
395
396
397
398
399
400
401
402
403