The assignment of error questions the accuracy of the charge of the Court, the propriety of refusing instructions asked by the defendant, and the sufficiency of the evidence to warrant the verdict.
In examining the charge of the Court, and the instructions refused, regard must be had to their relevancy and pertinency to the issues and proofs. The action was for fraud and deceit practiced in the sale ; and was well brought on the special facts and circumstances relied on as creating the defendant's liability. It was (as all our actions, in general, are) a special action on the plaintiff’s case. The petition sets forth the sale ■ of the property for its full, fair value ; its apparent soundness, but real unsoundness and the nature of it; and the defendant’s knowledge and fraudulent concealment and false representations. The answer put in issue the fact of the defendant’s knowledge of the unsoundness, and his concealment and misrepresentations. Upon these issues the case was submitted to the jury; the material averments of the petition were well supported by the proof; and ¡¡thereupon the Court instructed ¡ the jury, in substance, that if the drove of horses had "among ¡ their number any animal with an infectious or contagious dis- ; ease, which could be discovered by such an examination as a careful and prudent man would make under like circumstances, *383the plaintiff could not recover damages occasioned by such disease. But if the lot of horses sold were so diseased at the time of the sale, and the defendant knew and suppressed the fact, and the plaintiff could not ascertain it before making the purchase, by such an examination as a careful man would make, the plaintiff was entitled to recover the damages he had sustained by reason of the unsoundness. In this, there clearly ■was no error of which the defendant can complain. It was in proof that he knew that the horses were diseased, and repre-_. sented them as sound. ¡ He accounted for any suspicious appearances, by saying they had had the distemper and were getting well of it; thus diverting the attention of the plaintiff, and lulling any suspicions, appearances might have excited ; inducing him to believe they were occasioned by a comparatively trivial disease, which all the witnesses agree that it was not, instead of the really malignant and fatal disorder which the proof shows it to have been. / There can be no question? that the evidence discloses a case of manifest fraud. \
¡Nothing can be better settled than that fraud vitiates every ! contract, and may consist either in misrepresentation, or inj concealment. Every misrepresentation, with regard to any thing ¡ which is a material inducement to a sale, which is made to deceive, and which actually does deceive the vendee, vitiates the contract of sale. So, also, every concealment of defects by artifice, and for the purpose of deceiving the buyer, is a fraud which vitiates the sale. “ The inference of fraud is easily and ¡ almost inevitably drawn, where there is a suppression or con- ' cealment of material circumstances, and one of the contracting parties is knowingly suffered to deal under a delusion. ”/ (2 Kent, Com. 483 ; Story on Con., Sec. 840, 841, 842.) The inference is peculiarly cogent, and quite irresistible, where, as in this case, the vendor suppresses or conceals the fact that the animal sold is affected with a contagious and fatal disorder, which will not only occasion its loss, but is liable to be communicated to others and cause still further destruction and *384loss. The suppression or concealment of such a fact in the sale, cannot be considered as anything less than a positive fraud ; and of a peculiarly aggravated character.
But there was not only fraudulent concealment in this case, but misrepresentation also ; fixing the character of the transaction, on the part of the defendant, as fraudulent beyond a question. For there can be no question that such misrepresentions, in respect to that which was the* inducement to the purchase, constituted a fraud upon the plaintiff. Where a party misrepresents a material fact, or produces a false impression by words or acts in order to mislead, or to obtain an undue advantage, it is a case of manifest fraud. (1 Story’s Eq. Sec. 192, et seq. ; 2 Kent, Com. 484.) And in such a case, the ground of the action is the deceit practiced upon the buyer, to his injury.
It undoubtedly is true, as stated in the text of Judge Story, to which we are referred by the counsel for appellant, that “ the first and general rule in relation to warranty in cases of “ sale, is, that the purchaser buys at his own risk,— caveat “ eraptor,—unless the seller either give an express warranty : “ or unless the law imply a warranty from the circumstances of “ the case, or the nature of the thing sold; or, unless the seller “ be guilty of a fraudulent representation or concealment in.res- “ pect to a material inducement to the sale.” (Story on Sales, Sec. 345.) But here the rule caveat eraptor does not apply : for it is the very case which is ■ given as an exception in the text, where the seller has been guilty of a fraudulent representation and concealment in respect to the material inducement to the sale.
It is not deemed necessary to examine the doctrine of warranty in cases of sale, but it may be observed in the words of the same learned author, that, “ the tendency of all the modern “ eases on warranty, is to enlarge the responsibility of the seller, “ to construe every affirmation by him to be a warranty, and “ frequently to imply a warranty on his part, from acts and cir- *385“ cumstances, wherever they were relied upon by the buyer. “ The maxim of caveat emptor seems gradually to be restricted “ in its operation, and limited in its dominion, and beset with “ the circumvallations of the modern doctrine of implied war- “ ranty, until it can no longer claim the empire over the law of “sales, and is but a shadow of itself. Of course, if there be “ any fraud, or gross mistake in the case, the contract of sale “ would be thereby completely annulled.” (Id. Sec. 359.) Gradually the old Common Law rule of caveat emptor has “ been losing ground, and the law has been tending towards “ the doctrine of the Roman law, which is its antipode,— “ caveat venditor,—until it now occupies a middle ground be- “ tween the two, by requiring the strictest good faith on the “ part of the seller in all that he says and does, and throwing “ on the buyer the responsibility for any foolish mistakes, or “ wrong conclusions, which may result from his trusting to his “ own judgment.” (Id. Sec. 365.)
In respect to the measure of damages, the Court adopted the general rule in actions by the vendee for the breach of warranty; that is, the difference between the price paid and the worth of the article at the time of delivery with its defects and vices. But if the vendee has sustained other additional injury, which is either the immediate consequence of the failure of the vendor to perform his contract, or a material incident thereto, he may recover such damages. (Story on Sales, Sec. 453.) The plaintiff, however, was only allowed the benefit of the latter proposition, as to consequential damages, to cover the expense of taking care of the horses. The recovery was restricted by the charge, and was in fact confined to the actual loss which the plaintiff had sustained in the horses sold him • and compensation for the necessary care and attention bestowed upon them ; and though there was evidence of other damage, it was not allowed.
In the case of Jeffrey v. Bigelow, (13 Wend. R. 518,) which was a case similar to the present, and is in point, the Supreme *386Court of New York did not thus restrict the plaintiff in his right to recover consequential damages. The plaintiff had purchased of the defendants a flock of sheep, which were diseased. The disease proved to be contagious, and was communicated to other sheep of the plaintiff, which he before owned; and it was held that his claim for damages was not limited to the loss of the sheep purchased, but extended to the other sheep to which the distemper was communicated. The Court said “ the plaintiff is entitled to such damages as necessarily “ and naturally flow from the act of the defendants. The dam 11 age is not the mere difference between a diseased sheep and *• a healthy one, but the damage sustained by communicating “ the disease to the plaintiff’s flock. """ "x" If a person sells “ me a cow which.he knows to be affected with a contagious dis- “ temper, and conceals this disease from me, such concealment “ is a fraud on his part, which renders him responsible for the “ damages I suffer, not only in that particular cow, which is “ the object of his original obligation, but also in my other 11 cattle to which the distemper is communicated ; for it is a “fraud in the seller which occasions this damage. Evans’ “ Pothier, part 1, Oh. 2, Art. 3, p. 166.” (Id. 523-4.) On the subject of the fraudulent concealment the Court held, that as the agent of the defendants had authority to sell and did sell, with a knowledge that the sheep were diseased, and did not communicate the fact to the purchaser, his principals, although they had no actual knowledge of the fraud, were nevertheless liable to respond in damages to the purchaser.
It is manifest that whatever error there was in the charge of the Court, was committed in favor of the defendant. He cannot complain of such error.
It is unnecessary to examine separately the several instructions refused. It will suffice to say that those not embraced substantially in the charge given, were either not correct in themselves, or were not warranted by the proof. As we have seen, it would not have been correct in point of law, to have *387instructed the jury, as asked, that the defendant was not responsible in damages for the loss of any part of the drove, not actually diseased at the time of the sale ; or for loss occasioned by the communication of the disease to other portions of the drove; the correct rule being that the plaintiff was entitled to such damages as necessarily, or naturally resulted from the act of the defendant. Nor would the Court have been warranted in giving instructions which assumed that the disease was oyen and apparent to the observation of the plaintiff. The proof was that a part of the stock was not seen by the plaintiff, but was taken on the defendant’s representation ; and there was nothing in the evidence to warrant the supposition that by ordinary care the plaintiff might have been apprised of the character of the disease, if even that would exonerate the defendant in a case of fraud. (Story on Sales, See. 354, et seq.) Nor would the Court have been warranted in giving the charge which assumed that the disease was not, or may not have been contagious ; since, from the evidence, there could be no doubt that it was so. Where there is no conflict in the testimony, and no room to doubt or hesitate as to a matter of fact in issue, the Judge, in his charge, ought not to assume that it is or may be doubtful. Such a course is calculated either to confound the jury, by causing them to doubt the justice of their own clear convictions ; or to mislead by inducing them to suppose they may find the fact either way, when the evidence warrants but one conclusion, and to find contrawise would be to find manifestly against the evidence. The rule, which forbids the Judge to charge upon the weight of evidence, does not require or authorize him to assume as doubtful, that which is clear and indisputable ; or to assume hypotheses at variance with the certain fact. Where the evidence to a fact is positive and not disputed or questioned, it is to be taken as an established fact; and the charge of the Court should proceed upon that basis. It is only where there may be doubt, that the jury are required to weigh the evidence, and *388it is then only that the rule applies, that the Court shall not charge upon the weight of evidence. It is not the meaning of the rule that the Judge shall ignore the indisputable facts of the case, or distrust the evidence of his senses ; or that he shall assume that the jury may doubt where there is no room for doubt; or find contrary to the evidence and manifest truth and justice of the case.
It is unnecessary to review the evidence on which the verdict was found. The question of fact, as to the character of the disease, the knowledge, concealment and misrepresentations of the defendant, the fraud practiced, the value of the property, and the damages actually sustained, were questions for the jury, on which they have passed ; and their verdict is well supported by the evidence.
It is objected that there was no tender of the horses to the defendant at his place of residence. Such tender was not necessary to entitle the plaintiff to recover his damages ; nor was it necessary to entitle him to a rescisión of the contract that he should have offered to restore the property, it having, been proved and found by the jury to be utterly worthless. But if such offer was necessary, it was made ; the defendant did not object to the. manner of it, but positively refused to take back the property. More could not be required of the plaintiff.
The assignment of errors does not question the correctness of the judgment; and the appellant has nothing to complain of in the manner of its rendition. The petition prayed the delivery up and cancellation of the notes given the defendant for a part of the price of the purchase. But the answer of the defendant disclosed that he had already assigned and transferred the notes to a third person. They were transferred out of the power of the party and the Court. The Court could not act upon them. The only alternative relief which the Court could award was granted, and rightly under the prayer for general relief. We are of opinion that there is no error in the judgment and it is affirmed. Judgment affirmed.