Daniel F. Raymond brought an action on the case against Joseph Otis, for a fraudulent misrepresentation of facts, to his damage. The following is the substance of the case, as it appears on the record.
Raymond was the indorser of one Andrew Billings, on notes for his accommodation, to the amount of about 400 dollars. Billings being a bankrupt, and intending to abscond, which intention he soon afterwards executed, put into the possession of Otis, several notes of hand against Christopher A. Miner, a man of abundant property, to secure Raymond and his other *418creditors. On their reception, Otis promised Billings to deliver immediately to Raymond, a sufficient amount of them to satisfy him for his indoisements, or in some other way to pay and secure him. This arrangement was unknown to Raymond ; ⅛⅜; suspecting that something had been done forhis benefit, he made enquiry of Otis on the subject, who, with a fraudulent intent, declared, that no property or debts had been put into his hands, by Billings, for the above purpose. Confiding in this, Raymond divided with the other creditors of Billings one of the notes left with Oils, after having sued Billings, by foreign attachment, in which Otis was the garnishee. By this proceeding, Raymond lost about 200 dollars of his demand against Billings.
To sustain the action of Raymond against Otis, there must have been a fraud committed by the latter, and damages resulting from it to the former. Pasley v. Freeman, 3 Term Rep. 56. Vernon v. Keys, 12 East 632.
The supposed fraud consists in havidg suppressed the knowledge of the transaction with Billings, and of the contract made with him, and not in the non-delivery of the notes. Otis was under no obligation to deliver to Raymond any of the notes confided to him. He contracted in the alternative, either to deliver them, or to pay and secure Raymond ; and it was optional with him to do either, at his pleasure. It results, then, that the non-delivery of the notes, was no breach of any obligation ; and this reduces the case to the enquiry, whether the suppression of information by Otis, that he contracted to deliver the property, or to pay Raymond, is, in law, a fraud ; for, if the suppression of the truth, with a fraudulent intent, was not an actionable deceit, neither was the misrepresentation, made with the same design.
t Whether Otis was under a moral obligation to impart the requisite information ; or whether he violated his veracity, if he was not legally bound to speak the truth ; are unnecessary questions. “ The fraud must consist,” as was said by Lord Ellenborough, in Vernon v. Keys, “ in depriving the plaintiff, by deceitful means, of some benefit, which the law entitled him to demand or expect.” Now, with respect to the notes, Raymond had no right “ to demand or expect” them ; and in relation to the assumption of Otis, that remains in unabated force. Of what, then, was Raymond deprived, by the misrep*419resentation of Otis ? Of knowledge that Otis had contracted to pay or secure his demand ; to communicate which, Otis was not hound, by any legal obligation. I do not find the footsteps of an action for the fraudulent suppression of information, which the party was not obliged by law to supply ; and sure I am, that such a principle would be of widely mischievous effect.
The declaration of Raymond is equally defective in another essential particular, as no damage resulted from the misrepresentation of Otis. It had no tendency to produce any act or omission, to Raymond's prejudice. The silpnce of Otis would have been equally injurious, leaving Raymond in statu quo, without the addition of any new motive to action, or inaction. No impulse was given to his conduct. It was precisely the same as it would have been, had he never conversed with Otis ; and being left to pursue the dictates of his own mind, unenlightened by information, which he had no legal right to expect or demand, the damage, if any, could not result from the act of the defendant.
I am of opinion, that there is manifest error in the judgment below.
The other Judges were of the same opinion.Judgment reversed..