In this action the plaintiff has recovered a judgment for damages which he claims he -has sustained in consequence of the deceitful representations of the defendant Zimmerman and of Rogers, Brown & Co. (of which firm defendant Rogers was a member), by wliieh he was induced to .purchase of them $48,000 in par value of the stock of the Alabama and Georgia-Iron Company, paying them therefor $20,000 in cash. Mo' personal deceit is charged against the appellants, who are the only defendants served or appearing in the action. It is conceded that neither of-thenl personálly made any false representations or knew of or shared in the printed prospectus upon the contents of which the plaintiff’s alleged cause of action is wholly based. Prior to the organization of the Alabama and Georgia Iron Company, Rogers, Brown & Co. and the defendant Zimmerman jointly bought the properties of two existing companies, the Cherokee Iron Company, a Georgia corporation owning an iron furnace and iron lands in and near Cqdartown, Ga., and the Augusta Mining Company, owning ore lands in Georgia and Alabama, after which the Alabama and Georgia Iron Company was organized upon a basis of $650,000 preferred stock and the same amount of common stock. Zimmerman and Rogers, Brown & Co. paid '$100,000 into its treasury and tz’ansferred to it the properties acqniz'ed from the Cherokee Iron Company and the Augusta Mining Company, receiving therefor.the stock of the new corporation and the $100,000 *562in its treasury. Ifewas testified upon the trial by Noah H. S wáyne, who had been an-officer of the corporation from the time of its organization, and. its president until a few weeks before, that the value of its properties then was not less than $1,500,000, and that it was making.between eight and ten per cent.upon the full amount of its preferred stock;. that it was a paying property and in a very prosperous condition. During the negotiations for the purchase of the two properties referred to, the purchasers, were .wholly represented by Archer Brown (a member of Rogers, Brown & Co.), who died on September 23, 1904. ' - . •
- After the organization of the new company.and conveyance of said .properties to it, .it was determined to sell some of its preferred and commop stock for the purpose of repaying some portion of the cost to the original purchasers who retained a large amount of its stock and had a substantial money investment -in the property. Archer Brown had the exclusive charge of all the details connected with the acquisition of-the property, the preparation of th¿ prospectus óf the new company and other'details of the salé of .its stock, with all of which matters neither of the defendants had any personal knowledge or conpection, Thereafter- Brown prepared, caused to be printed and circulated, a lengthy prospectus of the new company, setting forth in detail its- properties.; the expenditures that had been made upon them"; their estimated value and earnings and many other .matters, to which the names of “Rogers, Brown & Co.” and “Eugene Zimmerman” were signed'.
The plaintiff challenges tlié accuracy .or .truthfulness, of certain statements contained in the prospectus, which áre alleged to have been false and to have been made with the intent of inducing, the plaintiff to subscribe to the capital stock of said company, as follow's.:
First. That the Cherokee Company was a prosperous company which had paid dividends to the time-of the death of its president, Col. West, in 1898. (Upon the trial it appeared that Col. West died in 1892, instead of 1898.)
Second. That the actual" cash outlay upon the property of the Cherokee Iron Company was upwards of $800,000.
Third. That the actual cost of coke iron at the Cherokee furnace was about seven dollars per ton and of charcoal iron about nine dollars per ton. (The statement in the prospectus is: “The cost *563of coke iron at Cherokee furnace in normal times is about $7 per ton, and of charcoal iron about $9 per ton. On the rates of labor, transportation, etc., now ruling, the cost will be about one to two dollars per ton higher. * * * Allowing cost to be $11, the margin of profit is about $7 per ton.”) *
Fourth. That large contracts for charcoal iron had already been made at prices averaging about eighteen dollars and fifty cents per ton at the furnace..
It is disclosed by the evidence that the plaintiff had no direct dr personal relations with-any member of the firm of Eogers, Brown & Co., or with the defendant Zimmerman. Ilis transactions were solely with his brokers — Grant Brothers — who were represented in- the purchase of the stock by their employee, Van Sickle, who had all of his dealings with one Gilchrist, who was an employee of Eogers, Brown & Co., and authorized by them to sell some of the stock on commission. ■
The record presents several interesting questions, but as the case must be disposed of upon an error of the trial court in its-instruc-. tioiis to the jury, we.do not regard the consideration of the other questions presented profitable or of benefit to the litigants.
The learned trial justice, in his main charge, instructed the jury that before they could find a verdict for the plaintiff they must find that Brown must have known that'the statements contained in the prospectus were false, or not knowing whether they were false or true, and not caring what the fact might be, made them recklessly, paying no heed to the injuries which ensued, after which lie charged, as requested by defendants, that “ In all actions for deceit the presumption is in favor of innocence, and on .that account the intent or design to deceive the plaintiff must be affirmatively made out by evidence,” and refused to charge that, “ If, therefore, the jury find that this prospectus was prepared from information fur: nislied to the defendants or to Archer Brown, then the jury must presume that such information corresponded to the contents of the prospectus, and,. even though such' information was false, yet the defendants would not be liable therefor.” We think this sentence correctly states the law applicable to this case upon one of the ■crucial questions involved and that the refusal of the trial justice to instruct the jury as requested was error, requiring a reversal. *564There is .uncontradicted evidence in- the case that Brown did get information concerning these properties from several persons-prioi to théir purchase; these persons were not.called as witnesses,• and there is no proof that ' his statements contained iii the prospectus were -not in strict accordance with the information thus acquired. This stock was purchased by plaintiff'in 1899. 33rowh died September. 23; 1904, and it was not' until practically á year after his death that -this action was commenced. .If the information received by .Brown was in fact believed- by him, and honestly stated in the prospectus, no matter if such information and his representations based' thereon were in fact untrue; there was no deceit.and- the defendants were not liable'in this action, which-'is not-based upon negligence-or other fault or error of Brown,-but rests wholly upon-deceit practiced by him upon the plaintiff.
Actionable deceit cannot be practiced without an actual intention -to deceive, .resulting in actual deception and consequent loss. There is nothing contained in the prospectus which can properly' be- construed as -asserting that its statements were based upon- or true to the personal -knowledge of the person's malting them, which distinguishes this case" from the case of Hadcock v. Osmer (153 N. Y. 604), in -which the court pointed out that' the defendant assumed to have actual knowledge of the statement made, and intended that the lender-should understand him as communicatinghis aetual knowledge. The rule as stated in Constant v. University of Rochester (133 N. Y. 648) is that where -the natural inference from the evidence does not necessarily lead to-the presumption of a fraudulent intent, hut is equally as consistent with innocence'as wrongdoing, that construction must he placed upon it which will exonerate the party implicated from a dishonest intent. (See, also, Morris v. Talcott, 96 N. Y. 100, 104.) In Shultz v. Hoagland (85 N. Y. 464) it is said-: “It,is not enough that they (the facts) are ambiguous, and just as consistent with "innocence as with guilt. That would substitute suspicion as the equivalent of proof. They must not be, when-taken together- and aggregated, when interlinked and put in proper relation to each other," consistent with- an. honest intent. If they, are; the "proof of fraud" is wanting.” The-burden was on the plaintiff-tb establish that Brown did not have and believe information" according with the representations which lie set forth in the pros*565pectus (Kountze v. Kennedy, 147 N. Y. 124, 129), and in the-absence of such evidence the defendants were entitled to the charge requested.
For this error the judgment and order must be reversed and a new trial gi’anted, costs to abide the event.
Hooker and Miller, JJ., concurred; the latter in a separate opinion; Gaynor, J., read for affirmance, with whom Jenks, J., concurred.