alert, self-reliant, and zealous in the cause of his client, the widow to whom he had been recommended by his friend Colton as the one man worthy of entire confidence and trust in case of trouble. Spurred on by a keen sense of the trust which had been reposed in him, he devoted his entire time and energy for a period of about six months, laboring with clerks and book-keepers, until, as he says, he had exhausted and tired himself out, sacraficed his own interests, and had "abused these people to the extremity, almost, of fighting personally." In connection with his deposition in this case, there was introduced in evidence his memoranda, taken during the investigations which he and others were making into the affairs of the Western Development Company, which show the most unmistakable care, and a painstaking and minute consideration of the subject. Upon this showing, no doubt, it was that Judge TEMPLE was induced to believe and find that plaintiff and her advisers were ignorant of no material fact or circumstance of which she ought to have been informed. The presumption would follow from the fact of investigation that everything material was discovered; but the presumption is fortified by the introduction of these memoranda, and by proof of the fact that many others had been made which at the time of the trial were lost.

Under such circumstances, is plaintiff entitled to a rescission of the contract thus deliberately entered into? We think she is not. Her counsel claim that there was actual and constructive fraud, and cite sections 1571, 1572, Civil Code. They say that defendants furnished a list of the assets of the Western Development Company; that this was equivalent to a positive assertion that the list contained all the assets,-an assertion not true, not warranted by the information of the parties making it, and therefore fraudulent, although they believed it to be true; that where a party, acting without belief or without information, makes a representation which is not true, the law imputes to him a knowledge of its falsity, and makes him as fully responsible as if he had such a knowledge. This is true, as a general proposition, where the other party has acted upon the representation, relying upon it as correct; but the rule as stated is not, upon authority or principle, applicable where such party, discarding the representation as unworthy of belief, proceeds to inquire for himself, is given full and fair facilities of informing himself, takes independent counsel, and finally acts upon his own judgment and that of his advisers. Misrepresentations cannot be predicated upon such a state of facts. 2 Pars. Cont. 770; Percival v. Harger, 40 Iowa, 289; Matthews v. Bliss, 22 Pick. 53; Van Trott v. Wiese, 36 Wis. 439; Hall v. Johnson, 41 Mich. 289, 2 N. W Rep. 55; Light v. Light, 21 Pa St. 413; Smith v. Kay, 7 H. L. Cas. 775; Development Co. v. Silva, 125 U. S. 258. 8 Sup. Ct. Rep. 881, Bigelow, Frauds, 7, 8.

We do not find anything in the authorities

cited by the appellant which is in conflict with the views we have expressed. Extracts from a few of them will show this to be the case. Thus, in Taylor v. Fleet, 1 Barb. 475, the court said: "If the purchaser has acted upon his own judgment, and has not been influenced by the misrepresentations, however untrue they may have been, he has no right to be released from his bargain. But I cannot concur with the counsel for the vendor in his position that the purchaser examined the land with a view to test the accuracy of the representations made by Fleet. On the contrary, all the witnesses agree that no personal examination of the land would enable any person, not previously acquainted with its capabilities, to determine whether the statements made by Fleet were true or not. The only means of knowledge within his reach was information to be obtained from those whose experience enabled them to speak from actual observation with respect to the material question which constituted the object for which the purchase was made."

In Rawlins v. Wickham, 3 De Gex & J. 312, the books showed so plainly the fraud that any man of ordinary capacity could have detected the fraud. The court there says: "During the negotiations for the partnership a paper was produced, which has been kept by Mr. Rawlins from that time, giving an account of the assets of the concern. The amount due to the customers of the bank was there stated to be £11,000 and a fraction. Upon examination of the books it appears that the real amount exceeded this by many thousand pounds,--a fact which an examination of the books by any person of the most ordinary competency would have shown. * * * Was there any excuse for such a misrepresentation? As regards Mr. Bailey, there was none. He was a professional man, taking an active part in the affairs of the bank, and it was his duty to know them, whether he did or not. Mr. Wickham was an inactive partner, knowing but little of its affairs, attending only occasionally at the bank, not meddling with the books, and probably knowing little or nothing of what they contained. * * *He joined with Mr. Bailey in producing the statement of accounts which I have mentioned, and in ascribing accuracy to it. Now, he ought not to have asserted what he did not know to be true. He ought to have said: It may be true. I have a good opinion of Mr. Bailey and Mr. Gattrill, but I am not acquainted with the books, and, as far as I am concerned, you must look at them for yourself.' He did not do so, but joined in a representation which was not true, and, for every purpose of pecuniary liability, the case is the same as if he had known that it was not true. ** * Mr Rawlins might have inspected the books. * * * He, however, did not examine them, and, improbable as it may appear, I must hold that Mr. Rawlins entered into the partnership in complete ignorance of the contents of the books, and continued so for four

years. He was entitled to believe their representations to be accurate without looking at the books. He was entitled to continue in that belief until ground for suspicion arose, or information was given him by one of the partners. No such information was given. They did not complain that he did not look at the books, and there is reason to believe that they would not have liked him to examine them." The difference between this case and the case at bar is too apparent for comment.

In Higgins v. Samels, 2 Johns. & H. 467, the language of the court shows the distinction between that case and the one at bar. It is there said: "It is not necessary to show that the defendants knew the facts to be untrue, if they stated a fact which was untrue, for a fraudulent purpose, they at the same time not believing that fact to be true. In that case it would be both illegal and immoral fraud. * What weighs upon my mind is the circumstance that the quality of the lime was not a mere subject of speculation, but a fact which the plaintiff, without any special familiarity with the business, could have made himself acquainted with."

In Carpmael v. Powis, 10 Beav. 44, the court uses this language. "Mr. Powis offered to procure the information. He did obtain and communicate it to the plaintiff, who relied upon it, and entered into the agreement on the credit of it. It turned out to be erroneous; but before the agreement, and till long after the agreement, Mr. Powis appears to have had no reason whatever to suspect that there was any error. He adopted it implicitly, on the authority of Mr. Cuthbert, and very innocently produced it to the plaintiff as a true statement of that upon which the amount of the annuity was to be calculated. If the plaintiff was guilty of any error or laches, it was in giving too much credit to the statement which had been adopted and communicated to him by the defendant's agent as true."

In Millar v. Craig, 6 Beav. 437, it appears that the plaintiffs, who lived in Scotland, never had an opportunity of examining the accounts. The court said that there was no proof whatever that the plaintiffs relied on Miller as their agent in the treaty with the other executors. On the contrary, they employed their own solicitor or law agent in Scotland. The release was signed in confidence, in the belief that the accounts had been truly stated.

In Reynell v. Sprye, 1 De Gex, M. & G. 709, the court says: "It was said that during the whole of the negotiations Captain Sprye not only left Sir Thomas Reynell at perfect liberty to consult his friends and professional advisers, but even on several occasions recommended him to do so. To a great extent this certainly was the case, and if the relief sought in this suit had rested on mere mistake; if Captain Sprye had not, by misrepresentations of fact, which I cannot treat as unintentional, led Sir Thomas Reynell to

believe that his rights were different from what in truth they were,-it may be that the argument to which I am now adverting would have prevailed. In such a case, perhaps, this court might have considered that it was the folly of Sir Thomas Reynell to have acted without advice, and might have refused to assist any person who was so singularly little alive to his own rights. * * But no such question can arise in a case like the present, where one contracting party has intentionally misled the other by describing his rights as being different from what he knew them really to be."

In Doggett v. Emerson, 3 Story, 732, it appeared to the court that the purchase of the plaintiff was made upon an entire credit given to the representation of Williams as to the quantity and quality of the timber. The plaintiff resided in Boston, and confessedly had no knowledge of timber lands, and had never seen the township in which they were situated. He must, therefore, have placed implicit reliance upon the statements of Williams. It appeared, also, that Emerson not only knew the contents of the certificates upon which the plaintiff relied, but corroborated the statements therein contained.

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In Lewin on Trusts, cited by appellants, the author says: "Before any dealing with the cestui que trust, the relation between the trustee and cestui que trust, must be actually or virtually dissolved. * * The parties must be put at such arms-length that they agree to stand in the adverse situations of vendor and purchaser; the cestui que trust distinctly and fully understanding that he is selling to the trustee, and consenting to waive all objections upon that ground, and the trustee fairly and honestly disclosing all the necessary particulars of the estate, and not attempting a furtive advantage to himself by means of any private information. *** Where the cestui que trust took the whole management of the sale himself, chose, or at least approved, the auctioneer, made surveys, settled the plan of sale, fixed the price, and so had a perfect knowledge of the value of the property, * * * Lord ELDON said that if, in any instance, the rule was to be relaxed by consent of the parties, this was the case. * * Again, a cestui que trust had urged the purchase upon the trustee, who at first expressed an unwillingness, but afterwards agreed to the terms, and the sale was supported. So, where the trustee had endeavored in vain to dispose of the estate, and then purchased, himself, of the cestui que trust at a fair and adequate price, and there was no imputation of fraud or concealment, Lord NORTHINGTON said. He did not like the circumstance of a trustee dealing with his cestui que trust, but upon the whole he did not see any principle upon which he could set the transaction aside.' * * * If it be absolutely necessary that the property should be sold, and the trustee is ready to give more than any one else, he may file a bill in chancery, and apply by motion to be

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allowed to purchase, and the court will then examine into the circumstances, ask who had the conduct of the transaction, whether there is reason to suppose the premises could be sold better, and upon the result of that inquiry will let another person prepare the particular sale, and allow the trustee to bid." Star paging 463.

In Boyd v. Hawkins, 2 Dev. Eq. 208, we find this language: "The prohibition of the trustee to purchase from the cestui que trust himself is not found to be so absolute. *** Bargains between them are viewed with anxious jealousy. It must appear that the relation has ceased, at least that all necessity for activity in the trust has terminated, so that the trustee and cestui que trust are two persons, each at liberty, without the concurrence of the other, to consult his own interest, and capable of vindicating it; or that there was a contract definitively made, the terms and effect of which were clearly understood, and that there was no fraud or misapprehension, and no advantage taken by the trustee of the distresses or ignorance of the other party. The purchase must also be fair and reasonable.

Mr. Pomeroy, in his work on Equity Jurisprudence, at section 855, uses this language: "When parties have entered into a contract or arrangement, based upon uncertain or contingent events, purposely as a compromise of doubtful claims arising from them, and where parties have knowingly entered into a speculative contract or transaction,—one in which they intentionally speculated as to the result,-and there is in either case an absence of bad faith, violation of confidence, misrepresentation, concealment, and other inequitable conduct mentioned in a former paragraph, if the facts upon which such agreement or transaction was founded, or the event of the agreement itself, turn out very different from what was expected or anticipated, this error, miscalculation, or disappointment, although relating to matters of fact, and not of law, is not such a mistake, within the meaning of the equitable doctrine, as entitles the disappointed party to any relief, either by way of canceling the contract and rescinding the transaction, or of defense to a suit brought for its enforcement. In such classes of agreements and transactions the parties are supposed to calculate the chances, and they certainly assume the risks, where there is no element of bad faith, breach of confidence, misrepresentation, culpable concealment, or other like conduct amounting to actual or constructive fraud."

In Brooks v. Martin, 2 Wall. 73, it appears that Brooks took advantage of his position as partner, agent; and brother-in-law of Martin intentionally to conceal from the latter the prosperous condition of the concern, and purchased his interest for a price totally disproportioned to its real value. So, also, in Addington v. Allen, 11 Wend. 383, there appeared an actual intent to mislead and defraud the plaintiff.

In Safford v. Grout, 120 Mass. 25, the character of the representations was not disclosed by the record. No objection was made that they were mere expressions of opinion, judgment, or estimate, or that they were intended to be understood as expressions of belief only. The court said: "We must presume that they were legally sufficient to support the action; that is to say, that they were statements of facts susceptible of knowledge, as distinguished from matters of mere opinion or belief; and that they were calculated to have, and did have, material influence in deceiving the plaintiffs as to the maker's means and ability to pay, and in inducing them to part with their property."

All that is decided in Redgrave v. Hurd, 20 Ch. Div. 24, is "that, where a false representation has been made, it lies on the party who makes it, if he wishes to escape its effect in avoiding the contract, to show that, although he made the false representation, the defendant, the other party, did not rely upon it. The onus probandi is on him to show that the other party waived it, and relied on his own knowledge. Nothing of that kind appears here.”

In Wells v. Millet, 23 Wis. 67, the court assume that, if the defendant had been careless or indifferent to ordinary and accessible means of information as to the truth or falsehood of the representation which had been made, he would have had no right to rely upon that.

In Rohrschneider v. Insurance Co., 76 N. Y. 218, the court said that "the fraud was really undisputed. The managers of the defendant had made the false representations, and they knew them to be false, as the dividends of the company never had paid the notes thus given for the one-half of the annual premiums. But, on the contrary, such dividends had always fallen far short of making such payments; and they must have known that they generally, if not always, would fall short. There was, in fact, no foundation or excuse whatever for making the untrue representations. * * It is said on behalf of the defendant that the plaintiff did not rely upon these representations, and was not induced by them to take the policy. But there was sufficient evidence from which the jury could have found that she did thus rely, and was thus induced."

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In Baker v Spencer, 47. N. Y. 564, the court said that the appellant's claim that the settlement of the action by the giving of a 300-dollar note operated as a compromise of the alleged fraud, and was a bar to the action, might have been well taken, if it had appeared from the pleadings or the findings that at the time of the settlement the defendant had ' knowledge of the facts constituting the fraud alleged, but that such claim was not well founded, being based entirely upon the statement that after giving the note the plaintiff began to suspect that the defendant had not the right to sell and transfer the agency.

The court said: "It does not appear from the complaint or findings that the plaintiff had any grounds for his suspicion, or any information on the subject, nor what defense was interposed on the trial before the justice in the action on the $500 note." The court then proceeds to distinguish the case before it from the case of Adams v. Sage, 28 N. Y. 103. In the latter case the court held that "where a party to whom representations are made has the means at hand of determining their truth or falsehood, and resorts to such means, and, after investigation, avows his belief that the statements are false, and acts upon such belief by bringing an action to recover money obtained from him by means of the fraudulent representations, he is not entitled to credit when he alleges that, upon reiteration of the truth of the same statements by the same party, he was induced to enter into an agreement to settle the suit, and was thereby defrauded. Such investigation and ascertainment of facts, and belief in the falsity of the representations made, exclude the idea that any reliance could have been placed upon the repetition of the falsehood; and the verdict of a jury, or finding of a referee, to the contrary, should be set aside, as unsustained by the evidence. Indeed, upon such evidence, it would be error to submit to a jury the question whether reliance was or was not placed upon the reiterated false representations. Under the circumstances assumed, the law presumes that the party relied in making the agreement upon his own investigation, and not upon the representations of the party with whom he is dealing. This conduct, in acting in opposition to the knowledge acquired by inquiry from one who knows the facts, is attributable, and is set down by the law, to his own indiscretion and recklessness, and not to any fraud or surprise of which, under the circumstances, he has any right to complain. ** * In 2 Pars. Cont. 270, the rule is laid down, in relation to defenses to actions on the ground of false representations, that it must appear that the injured party not only did in fact rely upon the fraudulent statement, but had a right to rely upon it, in the full belief of its truth; for otherwise it was his own fault or folly, and he cannot ask of the law to relieve him. Many of the cases cited by the author to sustain this rule hold that, if the truth or falsehood of the representations might have been tested by ordinary vigilance and attention, it is the party's own folly if he neglect to do so, and he is remediless."

In Perkins v. Gay, 3 Serg. & R. 331, the court said: "It is a principle, of equity that the parties to an agreement must be acquainted with the extent of their rights, and the nature of the information they can call for respecting them, else they will not be bound. The reason is that they proceed under an idea that the fact which is the inducement to the agreement is in a particular way, and give their assent, not absolutely, but on conditions that are falsified by the event. [Citing cases.] But where the parties treat

upon the basis that the fact which is the subject of the agreement is doubtful, and the consequent risk each is to encounter is taken into consideration in the stipulations assented to, the contract will be valid, notwithstanding any mistake of one of the parties, provided there be no concealment or unfair dealing by the opposite party that would affect any other contract. * * *Every compromise of a doubtful right depends on this principle. *** There is an express mutual abandonment of their former rights upon an agreement that, whether they be good or whether they be bad, neither is to recur to them on any pretense whatever, or claim anything that he does not derive from the terms of the agreement. Each takes his chance of obtaining an equivalent for everything he relinquishes; and, if the event turn out contrary to his expectations, so much the worse for him. If there be no intention of fraud, no unfair dealing, and neither party has more knowledge of the fact misconceived than the other had, the contract will bind.”

In Peek v. Derry, 37 Ch. Div. 577, while the court did not attribute to the defendants any intention to commit a frand, it found that they had made a statement which was incorrect to induce the plaintiff to act upon it, without any sufficient reason for making that statement, or any sufficient reason for believing it to be true.

Kerr on Fraud and Mistake thus states the proposition: "If a man to whom a representation has been made knows at the time, or discovers before entering into a transaction, that the representation is false, or resorts to other means of knowledge open to him, and chooses to judge for himself in the matter, he cannot avail himself of the fact that there has been misrepresentation, or say that he has acted on the faith of the representation. * * * If the party to whom the representations were made, himself resorted to the proper means of verification before entering into the contract, it may appear that he relied on the results of his own investigation and inquiry, and not upon the representations made to him by the other party.

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* *If the subject is in its nature uncertain, if all that is known is matter of inference from something else, and if the parties making and receiving representations on the subject have equal knowledge and neans of acquiring knowledge, it is not easy to presume that the representations made by the one would have much or any influence upon the other." Pages 75-78. Speaking of fiduciary relation, the author says: "A transaction between them [trustee and cestui que trust] will be supported, if it can be shown to the satisfaction of the court that the parties were, notwithstanding the relation, substantially at arms-length, and on equal footing, and that nothing has happened which might not have happened had no such relation existed. The burden of pooof lies in all cases upon the party who fills the position of active confidence to show that the