The opinion of the court was delivered, January 7th 1868, by
Agnew, J.This case seems to have been submitted to the jury upon erroneous principles. Davis laid out a plan of lots called “ Orchard addition to East Liberty,” and sold them at auction. His map was lithographed and was exhibited to the bidders by the auctioneer, and the sales made thereon, McCall becoming the purchaser of lots 12 and 13 ; described in his deed as “ all those town lots in the Orchard addition to East Liberty, Allegheny county, Pa., known as lots 12 and 13 on the plot of said Orchard addition.” These two lots fronted upon Shakespeare street, extending back to a ten feet alley. Shakespeare street and the alley were represented on the plot as running into a street called East street, bounding the square in which these lots lay. Without East street, Shakespeare street and the alley ended in a cul de sac, and the value of the lots was thereby diminished one-third. The lithographed plan made no distinction between East street and the others laid down on the plot, all being apparently parts of one plan, as if they had been laid off by Davis on his own ground.
There was also a street called Union lane running into East street, near to the square containing the two lots, affording a southerly outlet from Shakespeare street and the alley. It, like East street, appeared to be a part of the same plan. When’ the sales were made upon this plot, it does not appear that any information was given that East street was not laid out by Davis and was not on his ground. It turned out afterwards that East street had not been laid off by Davis, but by others, and was changed so as to cut off its connection with Shakespeare street and the alley. On the trial McCall contended that Davis was guilty of a fraud, and if not, of a wilful deception ; the sale by the plot was such a false representation of the existence and location of East street, and Union Lane as entitled him to a deduction from the purchase-money of the difference in the value of the lots made by the loss of East street. The learned judge decided that there was no sufficient evidence of fraud; and instead of submitting it to the jury to find whether there was a misrepresentation of the exist*434enee of these streets, and their materiality to the purchaser, such as would justify a detention of any part of the purchase-money on the ground of a partial want of consideration, reserved it as a question of law whether there was an implied undertaking to have these streets opened which were on the grounds of other persons. This question he afterwards decided against McCall. The effect of this ruling was to deny that a sale of village lots at auction by a plan shown to the "bidders, is a representation, of the existence and location of the streets set out in the plan.
In this there was error.
When an owner of ground lays it off into town lots with streets and alleys for their convenient use and, sells his lots accordingly, it is a dedication of these ways to the use of the purchasers. The plan which he exhibits to the bidders is the evidence of their existence and location. In this case his deed also refers to the plot, and thus makes it a part of the description. The effect of this reference is well stated by our Brother Read in the litigated case of Birmingham v. Anderson, 12 Wright 253. Where a map or plan is thus referred to (he says) it becomes a material and essential part of the conveyance, and is to have the same force and effect as if copied into the deed. For this many cases are cited. In that case the open space, called on the plan the beach of the river and laid out apparently as a thoroughfare, controlled the plaintiff’s boundary. When, therefore, Davis produced his plot to the bidders at the'public sale, exhibiting East street as one of the streets in his plan, and referring to nothing on its face to correct this impression or to inform the bidders that it was laid out by others on their own ground, it was an act which affirmed, as loudly as words could speak, that this was a street dedicated by him t'o the use of those who should become purchasers of his lots. It was an affirmation of a positive fact, which if material entered directly into the consideration of the purchase; and if false is a ground of relief in equity, when its falsity was unknown to the purchaser and when he has taken no covenant to protect himself. East street having here no immediate connection with the subject of the grant, did not fall within the ordinary covenants in the deed. But its materiality to the use of the lots is seen in the testimony as to the loss in their value by turning Shakespeare street and the alley, ways actually connected with the lots, into mere eul de sacs. A positive act or a false representation of a fact which misleads another to his hurt, stands on a very different footing from mere silence or from those representations that relate to open and visible things, which a purchaser can readily see for himself, or can guard against by common prudence. But the representation of streets and alleys, upon a plan of a new village or town, is the act of the founder, and has not the means of a *435ready discovery to enable one by the exercise of ordinary diligence to know its untruth.
The fact that the represented streets are not opened upon the ground affords no means of knowledge or a cause of suspicion as to the fidelity of the plot. The founder of a new town plot rarely opens the streets therein until a sale of lots has taken place. The ground to all appearance retains its original character as land, meadow or orchard, as in this case.
The plot represents the streets to be opened in case of a sale. If, therefore, he should indicate streets in his plan which a correct survey would show to be on the land of others, how are the bidders to know this ? At such a public sale of lots by plan no one comes with his surveyor to test the correctness of the plot, but each relies upon the fidelity of the plot exhibited to him, and if he be deceived therein, it is a most graceless answer on the part of the founder, that he might have tested the accuracy of the plan before he bought.
To ask the purchaser of each lot to survey a whole village plan to test its fidelity would be to disappoint the expectation of the founder himself, for he would make but few sales on such terms. In such a case the absence of wilful fraud on part of the vendor will not relieve him from the injury his mistake has entailed upon others. For his own positive acts which mislead and injure he is liable. The authorities are so numerous I shall not discuss them, but content myself with a reference to them ; 1 Story’s Equity, §§ 192, 193, 195; Tyson v. Passmore, 2 Barr 124; Fisher v. Worrall, 5 W. & S. 479 ; Smith v. Richards, 13 Peters 36 ; McFerran v. Taylor, 8 Cranch 270; Jenks v. Fritz, 7 W. & S. 201; Miles v. Stevens, 3 Barr 21; Borough of Erie v. Vincent, 8 Watts 510 ; Livingston v. Iron Co., 2 Paige Ch. 390 ; Quick v. Stuyvesant, Id. 92; Gillespie v. Moore, 2 Johnson Ch. 596. The language of C. J. Marshall in McFerran v. Taylor, supra, hits the very point of this case: “ He who sells property on a description given by himself is bound to make good that description, and if it be untrue in a material point, although the variance be occasioned by a mistake, he must still remain liable for that variance.”
The error of the learned judge below seems to have arisen out of his impression as to the nature of the defence. He calls it a set-off, and supposes it to rest upon some implied contract, agreement or covenant, and says the question may be simplified by inquiring whether, if the defendant had paid all the purchase-money, he could maintain an action of covenant against the plaintiff for the damages he seeks to set off in this action. If he could, then the defence set up will avail, but not otherwise. But the defendant was asking the interposition of equity against the payment of money which he alleged it to be inequitable he should *436be compelled to pay; and the ground of interposition was the false act of the plaintiff, his misrepresentation by the exhibition of his plot of a fact material to the value of the lots he sold, and which entered, therefore, directly into the consideration of his bond. He did not stand in the attitude of one seeking to recover back money paid upon the footing of a contract of indemnity or of covenant against the loss. The error of the court was in not submitting the question of false representation to the jury upon the facts as they existed at the time of the sale upon the exhibition of the plot to the bidders. The reservation of the question of law took from the jury the whole inquiry into the character of the plot, its tendency to mislead and into what occurred between the parties at the time of making the sale; and it put the case solely upon the existence of a contract, express or implied, to open East street and Union lane.
Judgment reversed, and a venire de novo awarded.