Johnson, J.
The plaintiff in error was indicted with one Nicholson, for obtaining the signature of G-eorge A. Wilson, to six promissory notes of $1000 each, by false pretenses, upon the purchase by the latter of Nicholson, of the title to one half of a certain'patent right. Several pretenses alleged to have been false were set out in the indictment, only one of which it will be necessary to consider, as the judge who presided upon the trial, when submitting the case to the jury, charged and instructed them that upon that one only could the plaintiff in error be convicted of the offense charged.
That pretense was in regard to the real and true price for the whole right. The charge in the indictment upon this subject, was that Scott, the plaintiff in error, and Nicholson, falsely pretended and represented that the real and true price in money, asked and fixed by Nicholson for the said right, was the sum of $12,000, whereas, in truth, the true price in money, asked and fixed for said right by said Nicholson, was only $3000. The plaintiff in error was convicted on this charge in the indictment, his accomplice, Nicholson, the owner and vendor of the patent, being used as a witness by the people. The only facts in regard to the price, and the representations in respect to it which the evidence tended to prove, were that Nicholson, who was the owner of the patented right, desired to sell the same, and wished the plaintiff in error to assist him in making the sale. That the plaintiff in error in[70]*70quired of Nicholson what he would take for his right, and was informed by Nicholson that he would take $3000. That thereupon the plaintiff in error informed Nicholson that he would get him three good notes for it, but he, Nicholson, must ask $12,000 or $15,000 for it, so that he, the plaintiff in error, could make something out of it. On the evening of the same' day, the plaintiff in error and Nicholson together saw "Wilson,' and negotiations commenced for the purchase of the right. Nicholson at first asked $15,000. Wilson thought the price ought not to be over $10,000; but it was finally fixed by Nicholson at $12,000, and the bargain was made at that price. The plaintiff in. error pretended to be a joint purchaser with Wilson of the right, Wilson gave the notes in question for his half of the purchase price, and the plaintiff in error pretended to give separate securities for his half. The patent was then duly transferred to Wilson and the plaintiff in error, who became the owners thereof. After the trade was thus consummated, Nicholson returned to the plaintiff in error, the securities he had turned out, and the six notes ’given by Wilson were divided between Nicholson and the plaintiff in error, each taking three. There was some conflict in the evidence in regard to the representations-as to the price ; but the judge charged the jury that if they found the representations in respect to the price to be false, as charged in the indictment, they should 'render a verdict of guilty, against the plaintiff in. error.
The question whether the indictment in this particular, set out any such offense, and also whether.the evidence on the subject of price, admitting all that was testified to on behalf of the people to be true, was sufficient to establish the crime of obtaining the signatures to the notes by false pretenses, was sufficiently raised in various forms by the counsel for the plaintiff in error. That the contrivance between Nicholson and the plaintiff in error, by which the trade was effected, and the notes obtained from Wilson [71]*71was grossly unfair and dishonest, in a moral point of view, must, of course, be admitted. But it does not follow from this, that the transaction constituted the crime of obtaining the signatures to the notes by false pretenses, as charged in the indictment. Wilson, by the bargain, got all he bargained for, and all he expected to get, to wit, the title to one half the patent right, and whether it was worth more or less than the price he agreed to pay by his notes, the "case does not disclose. The case, as it stands upon the evidence, is, not that Wilson was really injured and suffered loss by the bargain, but that he might have made a more advantageous purchase, and gained more, had the facts in regard to what Nicholson was to receive been stated and made known to him. The point is, was there a false representation as to price, at the time of the trade, which was material in the eye of the law. There is no evidence to show that the plaintiff in error made any representation whatever in regard to the price, except that he told Wilson, in the course of the negotiation, that he did not think Nicholson would take less than $12,000. This was a Jalse and dishonest expression of an opinion as to what Nicholson would or would not do ; but it was no representation as to what .Nicholson’s price in fact was. All the representations as to the price, were made by Nicholson. Had the indictment been for a conspiracy to cheat, between Nicholson and the plaintiff in error, Nicholson’s representations, for the purpose of effecting the common object, might be held to be those of the plaintiff in error. But that rule, I apprehend, does not apply to a case like this. But whether this is so or not, it is perfectly well settled that the pretense alleged to be false, must have formed some part of the inducement to the doing of the act, and must be of some existing fact, and made for the purpose of inducing the prosecutor to part with his property, or to do the act. Both the inducement and the fraudulent purpose are facts to be proved, and are [72]*72not to be presumed. It is to be borne in mind that the false pretense charged, and upon which the conviction was had, was that .the price of the patent was $12,000, when in truth it was only $3000;' and we are to look at the case now, as though nothing else had been charged in the indictment, and no proof given in regard to any other pretense which was there charged, as the other pretenses, and the evidence relating thereto, were all stricken out, or held to be out of the case. The notes, it is certáin, were signed by Wilson, to complete his purchase, and obtain his title to one half of the patent right. It is quite apparent .that he would not have given his notes for $6000 for ¡this interest, if the price asked had’ been only $1500, or $3000 for the entire right. To suppose the contrary, would be against all experience in commercial transactions, and all the grounds of common inference.
We all know that the higher price enters into the inducement of the seller to sell, and the lower price enters into the inducement of the purchaser to purchase. The old struggle for the higher price on the part of the seller, and the lower price on the part of the purchaser, which began at the beginning of traffic between men, still continues, and from the very nature of things, must continue as long as commerce is carried on. When, therefore, Wilson, the purchaser, testifies that he would not have signed these notes for $6000 if he had supposed the price was not $12,000, but only $3000, we can see that he only intends"to say that he would not have given that price if he had understood he he could have purchased for less; and not that the fixing of the high price formed, pr entered into, the inducement to make the purchase and sign any notes to complete it.
But in regard to the existing fact as to the price, how is that ? Price is the value which a seller places upon his goods for sale. It is not a fixed and unchangeable thing. It may be one thing to-day and another tomorrow, and one valuation to one customer, and a different one to [73]*73another on the same day or hour.
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Johnson, J.
The plaintiff in error was indicted with one Nicholson, for obtaining the signature of G-eorge A. Wilson, to six promissory notes of $1000 each, by false pretenses, upon the purchase by the latter of Nicholson, of the title to one half of a certain'patent right. Several pretenses alleged to have been false were set out in the indictment, only one of which it will be necessary to consider, as the judge who presided upon the trial, when submitting the case to the jury, charged and instructed them that upon that one only could the plaintiff in error be convicted of the offense charged.
That pretense was in regard to the real and true price for the whole right. The charge in the indictment upon this subject, was that Scott, the plaintiff in error, and Nicholson, falsely pretended and represented that the real and true price in money, asked and fixed by Nicholson for the said right, was the sum of $12,000, whereas, in truth, the true price in money, asked and fixed for said right by said Nicholson, was only $3000. The plaintiff in error was convicted on this charge in the indictment, his accomplice, Nicholson, the owner and vendor of the patent, being used as a witness by the people. The only facts in regard to the price, and the representations in respect to it which the evidence tended to prove, were that Nicholson, who was the owner of the patented right, desired to sell the same, and wished the plaintiff in error to assist him in making the sale. That the plaintiff in error in[70]*70quired of Nicholson what he would take for his right, and was informed by Nicholson that he would take $3000. That thereupon the plaintiff in error informed Nicholson that he would get him three good notes for it, but he, Nicholson, must ask $12,000 or $15,000 for it, so that he, the plaintiff in error, could make something out of it. On the evening of the same' day, the plaintiff in error and Nicholson together saw "Wilson,' and negotiations commenced for the purchase of the right. Nicholson at first asked $15,000. Wilson thought the price ought not to be over $10,000; but it was finally fixed by Nicholson at $12,000, and the bargain was made at that price. The plaintiff in. error pretended to be a joint purchaser with Wilson of the right, Wilson gave the notes in question for his half of the purchase price, and the plaintiff in error pretended to give separate securities for his half. The patent was then duly transferred to Wilson and the plaintiff in error, who became the owners thereof. After the trade was thus consummated, Nicholson returned to the plaintiff in error, the securities he had turned out, and the six notes ’given by Wilson were divided between Nicholson and the plaintiff in error, each taking three. There was some conflict in the evidence in regard to the representations-as to the price ; but the judge charged the jury that if they found the representations in respect to the price to be false, as charged in the indictment, they should 'render a verdict of guilty, against the plaintiff in. error.
The question whether the indictment in this particular, set out any such offense, and also whether.the evidence on the subject of price, admitting all that was testified to on behalf of the people to be true, was sufficient to establish the crime of obtaining the signatures to the notes by false pretenses, was sufficiently raised in various forms by the counsel for the plaintiff in error. That the contrivance between Nicholson and the plaintiff in error, by which the trade was effected, and the notes obtained from Wilson [71]*71was grossly unfair and dishonest, in a moral point of view, must, of course, be admitted. But it does not follow from this, that the transaction constituted the crime of obtaining the signatures to the notes by false pretenses, as charged in the indictment. Wilson, by the bargain, got all he bargained for, and all he expected to get, to wit, the title to one half the patent right, and whether it was worth more or less than the price he agreed to pay by his notes, the "case does not disclose. The case, as it stands upon the evidence, is, not that Wilson was really injured and suffered loss by the bargain, but that he might have made a more advantageous purchase, and gained more, had the facts in regard to what Nicholson was to receive been stated and made known to him. The point is, was there a false representation as to price, at the time of the trade, which was material in the eye of the law. There is no evidence to show that the plaintiff in error made any representation whatever in regard to the price, except that he told Wilson, in the course of the negotiation, that he did not think Nicholson would take less than $12,000. This was a Jalse and dishonest expression of an opinion as to what Nicholson would or would not do ; but it was no representation as to what .Nicholson’s price in fact was. All the representations as to the price, were made by Nicholson. Had the indictment been for a conspiracy to cheat, between Nicholson and the plaintiff in error, Nicholson’s representations, for the purpose of effecting the common object, might be held to be those of the plaintiff in error. But that rule, I apprehend, does not apply to a case like this. But whether this is so or not, it is perfectly well settled that the pretense alleged to be false, must have formed some part of the inducement to the doing of the act, and must be of some existing fact, and made for the purpose of inducing the prosecutor to part with his property, or to do the act. Both the inducement and the fraudulent purpose are facts to be proved, and are [72]*72not to be presumed. It is to be borne in mind that the false pretense charged, and upon which the conviction was had, was that .the price of the patent was $12,000, when in truth it was only $3000;' and we are to look at the case now, as though nothing else had been charged in the indictment, and no proof given in regard to any other pretense which was there charged, as the other pretenses, and the evidence relating thereto, were all stricken out, or held to be out of the case. The notes, it is certáin, were signed by Wilson, to complete his purchase, and obtain his title to one half of the patent right. It is quite apparent .that he would not have given his notes for $6000 for ¡this interest, if the price asked had’ been only $1500, or $3000 for the entire right. To suppose the contrary, would be against all experience in commercial transactions, and all the grounds of common inference.
We all know that the higher price enters into the inducement of the seller to sell, and the lower price enters into the inducement of the purchaser to purchase. The old struggle for the higher price on the part of the seller, and the lower price on the part of the purchaser, which began at the beginning of traffic between men, still continues, and from the very nature of things, must continue as long as commerce is carried on. When, therefore, Wilson, the purchaser, testifies that he would not have signed these notes for $6000 if he had supposed the price was not $12,000, but only $3000, we can see that he only intends"to say that he would not have given that price if he had understood he he could have purchased for less; and not that the fixing of the high price formed, pr entered into, the inducement to make the purchase and sign any notes to complete it.
But in regard to the existing fact as to the price, how is that ? Price is the value which a seller places upon his goods for sale. It is not a fixed and unchangeable thing. It may be one thing to-day and another tomorrow, and one valuation to one customer, and a different one to [73]*73another on the same day or hour. Whatever a seller asks any one to give is the price, until he changes it for another. The price asked is the existing fact, until it' is changed. When the price asked is changed to another price, the former price is no longer an existing fact. The existing fact is not what a party may be willing to take in case he cannot do better, but what he then proposes to take. The indictment in this case, in this respect, and the evidence on the part of the people, and the charge of the judge to the jury, all proceed upon the assumption that the price asked, when this bargain was made, was not the price, but something different; a mere false pretense. This is a mere confusion of ideas. That $12,000 was the price that Hicholson in fact asked on the occasion of that trade, no one denies, but all the evidence, on both sides, conclusively establishes. He first asked $15,000, and was offered $10,000. He finally came down to $12,000, and avowed his intention not to sell at that time unless he could get that price. There is no chance for dispute about this, at least on behalf of the people. But it is said that this price was fixed by collusion between. Hicholson and the plaintiff in error for the purpose of defrauding Wilson. This may be so, but it does not affect the question we are considering. That may have been an offense of another character, but it was not the offense in question.
Ho matter, so far as this question is concerned, how the price came to be fixed, and asked, or pretended, at that amount. It was in fact asked, and though it may have been asked for the purpose of taking a dishonest advantage of Wilson, the asking was the existing fact. Ho other price was asked, or named, or fixed between the parties to the transaction, on that occasion, than those above referred to.
The motive in asking this large price is of no consequence, so far as this offense is concerned, if, in fact, the price was demanded by the seller. It would be a most [74]*74extraordinary and unheard of thing to convict a merchant of obtaining money, or the signature to a note, by false pretenses, because in selling his goods, by which the money or the note was obtained, he had asked the purchaser, and obtained, a higher price for the goods than his 'price mark, or than he had offered to sell the same goods to another customer, Or than he would have been willing to take, had the purchaser refused to give the pretended price asked, and insisted strongly enough upon a lower price.
Or, take the case of a person who procures the aid of an agent or broker to assist him in making sale of his property, real or personal, and who is willing, and proposes to such agent to' sell at a given price, but who at the suggestion of the agent consents to ask a higher price, and to give the difference between the two prices to the agent in case the higher price can be obtained; can it be pretended for a moment, that either the principal or the agent could be convicted of obtaining money, or the signature of the purchaser to obligations, by false pretenses ■in regard to price, even though, as in the case before us, they had pretended that the higher price was the true and only price, and that they would refuse to sell for anything less. The cases are precisely analogous, so far as the false pretense is concerned. The element of collusion and conspiracy, which has been brought into the case at bar, belongs to another and different class of offenses. It must be seen, we think, and admitted, that the false pretense as to the price charged and sought to be proved in this case, is not the false pretense contemplated by the statute, and that the plaintiff in error was wrongfully convicted of that offense.
The judgment should therefore be reversed, and the plaintiff in error discharged absolutely.
Talcott, J. concurred.