delivered the opinión of the court,
This is an action on the case to recover damages for the fraudulent sale of a horse. The declaration contains two counts. One, charging a fraudulent warranty, the other, deceit and fraudulent representations. ■ Twro distinct questions are thus presented; the one, whether the defendant warranted the horse to be sound, the other, whether, without any warranty, he fraudulently and deceitfully practised some trick or artifice in making the sale whereby the plaintiff was deceived and injured.
As bearing in some degree on the first count, we cannot convict the court of error in admitting the evidence covered by the first and second assignments. ■ The third assignment covers the answer of the court to the fifth, sixth and seventh points submitted by the plaintiff. No one of these points presents the question of a warranty against the defect complained ■ of, but all of them are based on deceitful, fraudulent and artful statements and representations. Each of them, in different language, substantially requested the court to charge the jury that the defendant was liable, in ease he, with intent to deceive the plaintiff, answered him artfully, so as to mislead him to his injury. ■
The learned judge answered all these points together, and appears to have overlooked the distinction between warranty and deceitful representations. As was said in Krumbharr v. Birch, 2 Norris 426, “ It needs no citation of authorities to prove that the wilful misrepresentation or concealment of a material fact by the vendor constitutes a fraud.” But fraudulent representations may be as well by arts or artifices calculated to deceive, as by positive assertions: 2 Kent’s Com. *483; 1 Story’s Eq., sect. 192; Brightly’s Eq., sect. 55; Cornelius v. Molloy, 7 Barr 293.
*253Although no answer to .the points, yet in the absence of artifice or deceitful representations, the jury was correctly told “ the defendant was not bound to inform the plaintiff that the horse was a cribber. He had a right to remain silent and let the purchaser examine for himself and buy on his own judgment.” The jury was also correctly instructed that “ a seller has no right, by words or acts, to mislead a buyer and prevent an examination or inquiry.” The error was committed in the next sentence, which declared, “ But a mere evasive answer is not of itself equivalent to a warranty.” This is undoubtedly true, but is no answer to the points. The request was not for instructions as to what constituted a warranty or what answers were equivalent to a warranty, but as to the effect of fraudulent acts and declarations in the absence of a warranty. The court again interwove the warranty saying: “ The seller may keep the horse’s defects to himself, if he does not warrant nor make false representations nor fraudulent concealment, and the buyer has an opportunity to inspect and test the horse, and buys on his own judgment. The mere short hitching of the horse to a fence, accompanied by the defendant’s statement that he thus hitched him to keep him from rubbing the saddle, would not of itself be a false representation, equivalent to a warranty, if the buyer bought on his. own judgment, and after an express refusal on the part of the defendant to warrant the horse.” Thus the prominent thought expressed in the answer of the court relates to a warranty, while no such question was presented in the points. They called for no instructions that any “false representations were equivalent to a warranty”; nor that “the mere short hitching of the horse,” and the defendant’s statement relating thereto, were of themselves equivalent to a warranty. The question presented by the points was substantially, if at the time of the sale the horse was known to the defendant to be “ a cribber or wind-sucker,” and this fact was artfully concealed by him to the injury of the plaintiff, .whether it was such a concealment of a latent defect as would avoid the contract. The points submitted did not rest on the mere facts that the horse was hitched short and the reasons assigned therefor, but also on the additional facts that the defendant knew him to be a crib-biter, and resorted to this artifice to conceal it, and gave an untruthful reason to mislead and deceive the plaintiff. The complaint is not for a refusal or omission to answer, but for an evasive and artful answer. That the horse was actually a crib-biter, and so known to the defendant, was clearly proved. Whether that defect made him unsound was fairly submitted to the jury, under the evidence. That it lessened his market value seems to admit of no doubt. If the jury should believe, as ,the plaintiff testified, that he said to the defendant, “If there is anything wrong with the horse, I do not want him at any price,” and that the defendant, with knowledge he was a *254crib-biter, answered the plaintiff artfully and evasively, with intent to deceive him, and did thereby deceive him to his injury, it was such a fraud on the plaintiff as would justify him in rescinding the contract. The answer of the court, blending warranty with fraudulent artifices, failed to present the latter to the mind of the jury in a proper manner. The answer was calculated to mislead them as to the law applicable to that branch of the case: Relf v. Rapp, 3 W. & S. 21; Wenger v. Barnhart, 5 P. F. Smith 300; Gregg Township v. Jamison, Id. 468; Stall v. Meek, 20 Id. 181.
Judgment reversed, and a venire facias de novo awarded.