either set the contract aside and recover back the amount paid, or wait until sued for calls and set up the fraud by which he was induced to join the company, as a defense.1 But the statements made, to render the contract void, must have been material inducements to the stockholder to join the company, and where the representation consisted in a description of a certain kind of property to be purchased by the company and on a failure to get this property, other of an equal value was obtained, this was not held a sufficient fraud to avoid the contract.3 2 § 108. Where purchaser conceals value of mineral. As a general rule, fraud may consist as well in a suppression of the truth as an actual fraudulent misrepresentation, and one is regarded with as much disfavor by the courts as the other, and this is particularly true where the law imposes market and not on the strength of the prospectus. Peek v. Gurney, L. R. 6 House of Lords Cases, 377. But see Phelps v. Wait, 30 N. Y. 78; Sandom v. Moore, 8 Barb. 358; Bruff v. Mole, 36 N. Y. 200; Alger Prom. Cor. 36-57. 1 Bisp. Prin. of Eq., supra; Alger Prom. Cor., supra. 2 Jennings v. Boughton, 17 Beav. 234; aff'd in 5 De G. M. & G. 126. "In the prospectus, the company set forth a description of ten tracts of land it proposed to purchase, but only purchased eight, owing to the defective title to the others: Held, that on an action brought for fraud in the representations of the prospectus, it was error for the court to charge that if from the prospectus the plaintiff had a right to believe the company would acquire the property, and that the company were organized with a view to the ownership of those pieces of property, and if it did not obtain them, the plaintiff would be entitled to recover,where the evidence showed the purchase by the company of one other tract supposed to be equally valuable for mining purposes, and that the company had retained $75,000 in the treasury, as the price of the remaining tract." Kelsey v. Northern Light Oil Co., 45 N. Y. 505. M. M. D. 120; Martin v. Eagle Cr. Sev. Co., 41 Oregon, 448; 69 Pac. Rep. 216. 4 Kerr on Fr. & Mis. 91, 92, 95; Bisp. Prin. of Eq., § 213, p 270; Leake on Con. 184; Young v. Bumpus, 1 Freem. Ch. 241; Paddock v. Strobridge, 29 Vt. 470, 477. upon the party the duty to speak. But in the case of sales, since the rule of caveat emptor permits the seller to remain silent as to the subject-matter of the sale, and the buyer takes at his own risk,2 the law does not compel the purchaser to disclose advantages known only to himself, but allows him to conceal such knowledge as he may possess in regard to the property about to be purchased, and the purchaser of land under which there is a valuable deposit of mineral known only to the purchaser, is a familiar illustration of this doctrine.3 In such case the purchaser is not bound to disclose the fact that the land is rich in mineral deposits, for this is a matter upon which the seller should inform himself. But this rule only applies where the parties deal on equal terms; where they have equal means of information, and in the absence of a fiduciary relation between them.5 If the vendee during the negotiation of the purchase, makes any misrepresentation of material facts, by which the vendor is induced to sell at a lower price than he otherwise would, the sale would be fraudulent and void, and could be subsequently set aside by the vendor,6 and if the vendee, in such case, should make any representations, he should inform the seller of all material facts, and if he concealed a part of the truth, which was material and should have been disclosed, it would 1 Ante, idem. 2 See as to rule in sale of mines, Tuck v. Downing, 76 Ill. 71, and Renton v. Maryatt, 21 N. J. Ch. 123. 3 Turney v. Horney, Joc. 169, 178; Harris v. Tyson (a leading case), 12 Harris (Pa.), 347; B. & W. L. C. 351. See Williams v. Spurr, 24 Mich. 335. 4 Ante. 5 Williams v. Beasly, 3 J. J. Marsh. 578; Low v. Grant, 37 Wis. 548; Bigelow on Fraud, 33. See also Bisp. Prin. of Eq. 232; Tate v. Wiliamson, L. R. 2 Ch. 55; L. R. 1 Eq. 528. See also Cecil v. Spurger, 32 Mo. 462; Borrow v. Alexander, 27 Mo. 530; McAdams v. Cates, 24 Mo. 223, and Patterson v. Kirkland, 34 Miss. 423-431. Harris v. Tyson, 24 Pa. St. 397; B. & W. L. C. 351 et sub. be the same as though he had fraudulently distorted the facts.1 § 109. Confirmation of fraudulent transactions. — A sale which could otherwise have been avoided on account of the fraud practised, may still be confirmed or ratified by the subsequent acts of the party injured,2 or he may be deprived of his remedy on the ground of laches, through his own delay in bringing the suit,3 and this is particularly applicable to property of a fluctuating value, liable to large and sudden increase in value.4. Generally, after a fraud has been perpetrated, if the injured party continues to use the subject-matter of the sale, in the same respect as though it were his own property, he cannot afterward recover the consideration from the seller,5 and in all cases where he would avail himself of the right to avoid the sale, he must do so within a reasonable time. But when the defense of a confirmation of the fraud is relied on by the defendant, since no one is permitted to take advantage of his own wrong, it must appear that the confirmation was made with a full knowledge on the part of the injured 1 Bisp. Prin. of Eq., p. 270; Kerr on Fraud and Mistake, 91, 92. 2 Negley v. Lindsay, 67 Pa. St. 217; Bisp. Prin. Eq., § 259, p. 323. 3 Smith v. Clay, Ambl. 645; Bisp. Prin. Eq., § 260, p. 324; Wills v. Wood, 28 Ken. 400; Gifford v. Carville, 29 Cal. 589. 4 Bisp. Prin. Eq., supra; Grimes v. Sanders, 3 Otto, 62; Sullivan v. Portland &c. Co., 4 Otto, 806; Wills v. Wood, 28 Ken. 400; Thomas v. Barlow, 48 N. Y. 200; Lloyd v. Brewster, 4 Paige, 537. Campbell v. Fleming, 1 Ad. and El. 40. 6 Gifford v. Carville, 29 Cal. 589; Roth v. Vanderlyn, 44 Mich. 597. What would be an unreasonable delay must vary with the circumstances of each case. Kerr on Fraud & Mistake, 304-305; Reese R. Min. Co. v. Smith, L. R. 47 L. L. Cas. 64; Ashurst's App., 40 P. F. S. 290; Evan's App., 31 Id. 278. "The right to repudiate a contract on account of fraud, once lost by acquiescence is not revived by the subsequent discovery of another incident in the same fraud (that the outlay on the mine had been only £5,000 instead of £35,000 as represented)." Campbell v. Fleming, 1 Ad. & EI. 40. M. M. D. 123. party, of his right to set aside the contract, and unless it appear that he acted advisedly and for the purpose of confirming the otherwise void transaction, this defense would not avail the wrong-doer.1 1 Bispham's Principles of Eq., § 259, p. 323; Kerr on Fraud and Mistake, 296. "Where there has been fraud the vendee may rescind and recover back the price paid, but the tender should be in a reasonable time after the discovery of the fraud; by undue delay the contract would be affirmed. In this case (fraudulent sale of oil stock), four months was held to be undue delay." Leaming v. Wise, 73 Pa. St. 173; M. M. D. 160. Where, after knowledge of facts, a defrauded purchaser buys machinery and works ore, he ratifies the fraudulent sale. Eldridge v. Y. A. C. Mining Co. (Wash. 1902), 67 Pac. Rep. 703. See also Martin v. Eagle Creek Dev. Co. (1903), 41 Oreg. 448; 69 Pac. Rep. 216. CHAPTER IX. MINING LEASES. SECTION 110. Form and general nature of lease to mine. 111. Agreements for future leases. 112. When lease goes into effect. 113. Parties to lease. - 124. Same Right to work - Incidental privileges. 127. Forfeiture for breach of covenant. 128. Reservation of rent or royalty. 129. Same Dead rent - Payable unconditionally. 132. Same-Rights and liabilities of assignee. 133. Duration of tenancy. 134. Same- May be perpetual. 135. Right to remove fixtures and machinery. § 110. Form and general nature of lease to mine. No particular form of words is necessary in order to constitute a mining lease.1 The words usually employed are demise, grant, lease and let for mining purposes,” 2 but any other terms or form of words, that express the intention of the lessor to divest himself of the possession of 1 Tiedeman on R. P., §§ 178-772; Taylor's Land. & Ten., §§ 14-28; Fisher v. Milliken, 8 Pa. 111; B. & W. L. C. 416. 2 Moore v. Miller, 8 Pa. St. 272; B. & W. L. C. 416; Tiedeman R. P. 178. |