It is insisted, on behalf of tiie appellant, that the court erred in the instruction to the jury, and that the verdict was not warranted by the evidence.
The instruction given must be understood in reference to the issue and evidence in tiie case. Tiie defense relied on was the fraudulent misrepresentation *40of the plaintiff in respect to the quantity of laud within the rented premises in a good condition for cultivation. The issue was as to this alleged fraud and deception, and to this point the evidence was directed. The charge, then, must be understood as having- had an especial and direct reference to this issue and the evidence respecting- it. The words employed must be taken in their ordinary and popular acceptation. And, tints understood, the instruction was, in effect, that if the plaintiff had induced the defendant to enter into the contract by fraudulent misrepresentations, by which the latter had been deceived to his prejudice, the plaintiff was entitled to recover only the actual value of the rented premises; otherwise lie was entitled to recover the full amount contracted for, less the payments previously made. This instruction, as applied to the ease in evidence, was, it is conceived, correct. If the party, says Story, intentionally misrepresents a material fact or produces a false impression by words or acts, in order to mislead or obtain an undue advantage, it is a ease of manifest fraud. (1 Story 33q., sec. 192.) It is a rule in equity that all the material facts must be known to both parties to render the agreement just and fair in all its parts. (2 Kent Com., 491.) And if .there be any intentional misrepresentation or concealment of material facts in the making-of a contract, in cases in which the parties have not equal access to the means-of information, it will vitiate and avoid the contract. (2 Kent Com., 482; 2 Bail. R., 324.) It is immaterial whether the misrepresentation be made on the sale of real or personal property, or whether it relates to the title to laud or some collateral thing attached to it. (7 Wend. R., 380.)
That there was in this case a gross and palpable misrepresentation and deception intentionally practiced upon the defendant by the plaintiff in a most' material fact seems scarcely to admit of a doubt. The plaintiff assumed to know, and stated the facts to be, that there were of the premises one hundred and forty acres of land in a good condition for cultivation; whereas the fact was that there were not fifty acres in that condition. But whether the party thus misrepresenting tile fact knew it to be false, or made the assertion without knowing whether it was true or false, is wholly immaterial; for it lias been justly said the affirmation of what one does not know or believe to he true is equally, in moráis and laws, as unjustifiable as the affirmation of what is known to bo positively false. (1 Story 13q., sec. 193; 9 Ves. R., 21.) The present., therefore, seems to have been a ease of manifest, positive fraud on.the part of the plaintiff of a character to vitiate and avoid the contract.
It cannot with justice be said that the parties' liad equal means of information respecting the facts, and that'therefore the maxim of caveat emptor ought to apply. Their means of information cannot lie said to have been equal. And that rule does not apply where one party to the contract entered into, it by reason of the false anil fraudulent representations of another, who "is supposed to possess superior means of information. (6 Shep. R., 418.) A false representation relating to the value of an estate, the knowledge of which is usually confined to the owner and those standing in confidential relations does not come within the rule that the party making it is not responsible to one deceived by it, by reason of its being a matter which is or should be equally well known to both parties. (Ib.f And a lessee, it lias been held, cannot be considered as having waived such defense to an action oil the lease from the mere fact that he had been upon the premises before the lease was executed. (Ib.) The owner of the premise must be supposed to be peculiarly cognizant of the fact of the quantity of land fit for cult ¡ration, which he undertook to state, and which a stranger coining to lease tlio premises is not supposed to know. It was both natural and proper for the latter to look to the former for information, and lie had a right to expect the truth. Motliiug less could accord wil.li the plainest dictates of honesty and fair dealing, or could comport with the duty ofi the plaintiff in morals and law. The representation was in a matter respecting which the defendant is not supposed to have been equally with the plaintiff -acquainted with the facts; and it was made in a "manner so positive and
definite as naturally to induce the former to forbear *41using the means of information which for his own security lie might otherwise have employed. And these are tlie circumstances which reader the misrepre-seuhdiotis of a character to avoid the contract. (1 Story Eq., secs. 108, 190; 2 Kent Cow., 487.)
It is indeed 1 me that every person repose:! at his peril in the opinion of others when he lias equal opportunity to form and exercise a correct judgment of ids' own; but that is not the ease of the present defendant. If, says Sugden, an estate be represented as containing a given quantity, although not professedly sold by the aero, the circninstauce'that the purchaser was intimately acquainted with tlie estate would not necessarily imply knowledge of its exact contents, while a particular statement of the quantity would naturally convey the notion of actual admeasurement; and therefore the court would not he warranted in inferring that the purchaser knew the real quantity. (Sug. V., 293, 294.) And, a fortiori, this would he the case where the purchaser was wholly unacquainted With tlie premises.
Upon the discovery of the fraud, it, doubtless was competent for the defendant to liave abandoned or restored the premises to the plaintiff, and thereby wholly to have avoided the contract. But as it appears that lie could-not have done so without inconvenience and injury, and could not liave been restored to liis original condition before making the contract, it was not, as we conceive, necessary for him to have done this to enable him to resist the payment of so much of the price stipulated for the premises as the quantity fell short of tlie representation. (5 Shep. R., 829; 9 Johns. R., 403.) The rule is stated to be that if an estate be sold at so much per acre, and there is a deficiency in the number conveyed, the purchaser will be entitled to compensation. (Sug. V., 29i.) And the rule is the same, says Sugilen, though the land is neither bought nor sold professedly by the acre. The presumption Is that in fixing the price regard was had on both sides to the quantity which both supposed the estate to consist, of. The demand of tlie vendor and the offer of the purchaser are supposed tobe influenced in'an equal degree by the quantity which botli believed to be tlie subject of their bargain. The general rule, therefore, is that when a misrepresentation is made as to tlie quantity, though innocently, the right of the purchaser is to have what the vendor can convey, with an abatement out of the purchase-money for so much as the quautity fails short of the representation. (Ib.) And surely the right of the vendee or lessee will not be prejudiced by tlie fact that tlie representation was not innocently but intentionally and fraudulently made. It is a very old head of equity, said Lord Eldon, (0 Ves. R., 182,) that if a representation be made to another person going- to deal in n matter of interest, the former must make the representation good if lie knew it to he false.
It appears to have been optional with tire defendant whether he would at once abandon and avoid the contract altogether or remain upon and cultivate the land actually conveyed, and have an abatement of the price pro lanío the deficiency. (1b.; 2 Hen. & Munf., 178, n.; 1 Call R., 301; 4 Munf. R., 332; 1 Des. R., 433; 2 Rep; Const. Ct., 100.) Tlie rig-lit of the defendant, theve-'fore, to liis defense was not waived nor lost by liis omission to restore the! premises. Nor is it conceived to liave been affected by liis subsequent prom-l ises of payment, since those promises were accompanied with protestations/ against the justice of the claim, and appear to have been induced by tlie femi 'of litigation. The defendant had already paid more than the proportionates value of tlie quantity of hind found to be in good condition for cultivation, aud\ upon no principle of equity or justice equld more be required of him. The plaintiff bad no right to demand more, and any promise which tlie defendant may have made after tlie contract liad been in equity executed, and his liability under it extinguslied, was without consideration, a mere nudum pactum, not obligatory upon him. (2 Bl. Com., 448.)
The instruction given by tlie court, as a legal proposition, was more favorable to the appellant than lie could liave required; for it asserts that if there was no fraud on the part of tlie plaintiff, ho was entitled to the full *42amount stipulated in the contract; whereas, had the misrepresentation been innocently made, as we have seen, still the defendant would have been entitled to an abatement of the price for so much as the actual quantity fell short of the representation. But this is not an error of which the appellant can complain.
Note 15.—York v. Gregg, 9 T., 85; Hays v. Bonner, 14 T., 629; Littlefield v. Tinsley, 22 T., 250; Rhode v. Alley, 27 T., 443; Copeland v. Gorman, 19 T., 253. An estate will not be permitted to derive unjust advantage from the fraudulent conduct of the administrator. (Able v. Chandler, 12 T., 88; Crayton v. Munger, 9 T., 285; Hawpe v. Smith, 25 T. Supp., 448; Roehl v. Pleasants, 31 T., 45.) Wliero the representation of the administrator is but the honest expression of his opinion upon facts equally well known to the purchaser, the rule of caveat emptor applies. (Walton v. Rdager, 20 T., 103.) Tho'acts and representations of the wife, in respect to her rights of property, made to deceive and which do deceive others to their injury, will be binding upon her, and she will bo precluded from asserting her claim as against those who have confided in and acted upon her representations and admissions, or who have been deceived to their prejudice by her fraudulent acts. (O’Brien v. Hilburn, 9 T.. 297; Holliman v. Smith, 39 T., 357; see Cross v. Everts. 28 T., 523; Fitzgerald v. Turner, 43 T., 79.) Note 16.—Smith v. Fly, 24 T., 345. As to the rule where there is an excess or deficiency of land in boundaries sold, sec Smith v. Fly, 24 T., 345; O’Connell v. Duke, 20 T., 299; Farenholt v. Perry, 20 T., 316; Ladd v. Pleasants, 39 T., 415. Note 17.—Walling v, Kennard, 10 T., 508; Copeland v. Gorman, 19 T., 253.The defense relied on appears to have been a valid defense to the action, and the verdict to have been fully supported by the evidence; and we are of opinion, therefore, that tho judgment be. affirmed.
Judgment affirmed.