Opinion by
Mr. Justice Thompson,On May 11, 1886, the appellant being the owner of seven tracts of timber land* containing about 2,800 acres, entered into an agreement with the appellee for their sale for the sum of $10,900. Before this agreement was made, the agents of the appellee with the agent of the appellant visited the lands on several occasions for the purpose of examining them with a view to their purchase for the prop timber upon them. The result of these examinations was this agreement for their purchase. On June 4, 1886, a meeting took place at Lock Haven for the purpose of consummating the sale by the execution of the deed *166and the bonds and mortgage to secure the deferred payments. Previous to this meeting, appellee’s agents received information that led them to be suspicious about the representations made by appellant’s agent as to the boundary line of the tracts, and they declined to proceed with the transaction until further examination. Accordingly the agents of both parties made a visit for the purpose of examining the lauds, and after this visit the appellee through his agents concluded to close the purchase. Upon April 14, 1886, accordingly, the appellant executed a deed for the land and the appellee three judgment bonds and a mortgage to secure the same for three deferred payments of $2,030 each. The appellee went into possession and proceeded to cut the timber from the lands, and has continued to do so. The appellee paid the first two deferred payments as they became due, but refused to pay the third. In consequence of which the appellant entered judgment upon the bond gi.ven for it and issued execution. The appellee then filed his petition, alleging that the agent of the appellant had induced him to purchase the lands by pointing out certain lines as the true boundary line of them, that such lines were not the true boundary lines but were outside of the lands, and that the lands embraced between them and the true lines contained the most valuable prop timber, which induced him to purchase ; that in pointing out these false lines the agent of appellant perpetrated upon appellee “ a premeditated, willful and malicious fraud.” He claimed: “ That by reason of the premeditated, willful and malicious fraud aforesaid he suffered damage to the amount of $3,000, and prayed for equitable relief.” Upon this application the judgment was opened and an issue framed. This issue was to determine whether there was a fraud perpetrated bjr the appellant through the representations made by his agent as to the lines of the land, and if so, the amount of damage done to appellee to be a set-off against the claim of appellant. This issue under the petition was as to the fraudulent and malicious representations in regard to the boundary lines and related to nothing else. Its purpose was to satisfy the conscience of the chancellor as to whether fraud in this regard had been perpetrated upon appellee when he made the purchase. It appears by the proofs that there were misrepresentations as to these lines, by reason of which appellee failed to get about 160 acres of valuable prop *167timber land which were pointed out as within the lines of his purchase. It is clear that the appellee is entitled to a set-off to the extent of the damage thus done by such misrepresentations, but on the trial the appellee claimed as a set-off additional dam ages by reason of the false and fraudulent misrepresentations as to the amount of prop timber upon the western tracts purchased by him. As the set-off is practically in the nature of an action on the case for deceit, the appellee is entitled to sucli damages as result from the deceit or fraud effected by the false and fraudulent misrepresentations of appellee through his agent. The learned trial judge, in his charge, in addition to the question of fraud and deceit, submitted to the jury one as to a warranty of the amount of the timber upon these western tracts. He said: “ If you believe from the evidence that Mahaffey (appellant) warranted to the Bittings, or the defendant Ferguson at the meeting on June 4, 1886, that the facts would be as Marsh would state them, and that Marsh did state to the Bittings that the lines and timber over the whole tract were the same as he had formerly represented them to be on former occasions, that the Bittings were not bound to use further efforts, care or caution in examining and ascertaining the truth, but had a right to rely upon the representations of Marsh without looking further; and if he made such warranties to Ferguson it would entitle him (Ferguson) to recover damages.” Prior to the meeting on June 4,1886, the appellee’s agents had gone to the lands for their examination and were satisfied with the result of the same, but at the date of the meeting, because of a suspicion suggested as to Marsh, a doubt arose as to the boundary lines of these lands. Charles Bitting testified that appellant “ said, if that was all the trouble, he could fix it up satisfactorily, and he authorized Marsh to go over them again and examine it carefully, and whatever Marsh would show or' represent he would stand for all damages.” There is no evidence of any warranty made June 4, 1886, as to these western tracts. The only question then arising was in regard to the lines, and if it be true that appellant had authorized Marsh to go upon the tracts he did so for the purpose of pointing out their boundary lines, and nothing more. Several trips were made to them by the appellee’s agents. They had their eyes open, and their understandings were doubtless upon the alert. *168The lands were pointed out to them, they saw them, and they were satisfied with them, as to the character and extent of the prop timber upon them. Thus, on June 4th, no warranty was intended or contemplated as to these western tracts, and the only doubt was as to the lines pointed out. There is no evidence of any warranty made on June 4th, and as there was none it was error to submit it to the jury.
There was no warranty as to the amount of timber on these tracts made on that day, and none prior thereto. Appellee’s agents were looking for prop timber and met Marsh, who said to them that he had these lands belonging to appellant for sale. He went with them in April, 1886, upon an adjoining tract, and pointed them out to them. He said: “ Here is a nice lot of prop timber upon James W., Charles McMackin, and George tract.” “All you see there is prop timber, yellow and jack pine.” A week later these agents, with an expert, J. R. Thorn, went with Marsh to visit them for the purpose of further examination. Marsh again pointed out the lines and said: “ There was a nice lot of prop timber on them tracts. That was all yellow and jack timber, that we could see from the front.” Shortly after this Charles Bitting, Ross Thorn, and Marsh went again to look at these lands, and Marsh pointed out the lines and subsequently, after June 4th, these agents, with Colbert, an expert, and Marsh went again to examine them, and Marsh said there was considerable timber upon those tracts. Bitting himself testified that “We could see there was green timber on these tracts, and he said they were yellow and jack pine.” On this occasion they did not continue their examination on account of rain. The appellee dealt with the appellant at arms length, and the opportunity to investigate was open to his agents. If their examination was incomplete, it was their error. If they chose to rely upon an imperfect investigation because of rain, it was their mistake. If before the completion of the sale they were advised as to the tricky character of appellant’s agent, and with their suspicions thus aroused they chose not to investigate fully, it was their fault. The repeated examinations, the employment of experts, the suspicions, the refusal to complete the sale, because of the lines, show clearly there was no warranty made or intended, and that the parties dealt with each other with their eyes open, and at arms length, *169and representations made under these circumstances did not constitute a warranty.
In Veasey v. Doton, 3 Allen (Mass.), 380, it is said: “ The plaintiff had no right to rely on the representation of value as a fact, nor to place any confidence or trust in it. Such representation, however exaggerated, false and deceptive it may be, is not actionable, if the subject of the sale be open to the buyer’s observation. He is bound to examine or inquire for himself and trust his own judgment, or take a warranty from the seller.”
In Smith v. Richards, 13 Peters, 42, it is said: “We think we may safely lay down this principle that wherever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has never seen, but which he buys upon the representation of the seller, relying upon its truth, then the representation in effect amounts to a warranty, at least, that the seller is bound to make good the representation. No part of the reasoning of the cases which we have been reviewing applies to such a case; they proceed upon the idea that, where the subject of the sale is open to the inspection and examination of the buyer, it is his own folly and negligence not to examine. Chancellor Kent, in the second volume of his Commentaries, 484, 485, has justly said that the law does not go to the romantic length of giving indemnity against the consequences of indolence and folly, or a careless indifference to the ordinary and accessible means of information.”
In Slaughter v. Gerson, 13 Wallace, 383, it is said: “ A court of equity will not undertake, any more than a court of law, to relieve a party from the consequences of his own inattention and carelessness. Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he will not be heard to say that he has been deceived by the vendor’s misrepresentations. If, having eyes, he will not see matters directly before them where no concealment is made or attempted, he will not be entitled to favorable consideration when he complains that he has suffered from his own voluntary blindness, and been misled by over confidence in the statements of another.”
*170In Farnsworth v. Duffner, 142 U. S. 47, it is said: “This is a suit for the rescission of a contract of purchase and to recover the moneys paid thereon, on the ground that it was induced by the false and fraudulent representations of the vendors. In respect to such an action it has been laid down by many authorities that, where the means of knowledge' respecting the matters falsely represented are equally open to purchaser and vendor, the former is charged with knowledge of all that by the use of such means he could have ascertained.”
In Shisler v. Baxter, 109 Pa. 443, it is said : “ Mere representations as to the quality of the article sold do not constitute a warranty: Wetherill v. Neilson, 8 Harris, 448. Nor in itself is it evidence of a warranty: McFarland v. Newman, 9 Watts, 55. Unless there be fraud or warranty the purchaser takes the risk of the quality: Whitaker v. Eastwiek, 25 P. F. S. 229. So in a sale of personal property on inspection, and where the vendee’s means of knowledge are equal to the vendor’s, the law does not presume an engagement by the vendor that the thing sold is of the species or kind contemplated by the parties : Lord v. Grow, 3 Wright, 88.”
In Wetherill v. Neilson, 20 Pa. 453, it is said: “If mere representations were to be treated as part of this contract, it is not easy to see why they should not be so as to all other contracts. And if they were, then the law would foster a spirit of litigation by encouraging every man who is disappointed in the advantages expected from a bargain to drown his sorrows in the excitement of an action at law. The law repairs broken contracts, but-it does not attempt to satisfy mere expectations.”
As the appellee through his agents dealt with the appellant through his agent upon equal terms, and as there was no warranty as the basis of the sale, the learned judge erred in charging : “ The only question is whether he shall be compelled to pay more than he has already paid — whether in justice and right he ought to pay the full price stipulated in his contract, or whether, by reason of the fraud or the mistake or the warranty of the vendor (if you find there was fraud or mistake and a warranty of them), his vendee, the defendant, is entitled to a rebate off that price to the extent of his loss, under the rules of law which we have stated.” Again: “ And as we view this case this purchaser was entitled to that land as it- was repre*171sented to be timbered and located and if it was not as represented to be, even if those representations were honestly made, lie is entitled to the difference between its value as represented and its actual value as it was.” The vice of these rulings is the union of fraud and warranty. The issue in this case was not one relating to a warranty, but was whether a premeditated and willful fraud had been perpetrated by the appellant through his agents by the false and fraudulent representations “of material facts, bjr which he had induced appellee to make the purchase. If the fraud alleged was consummated, the appellee upon its discovery had a right either to affirm or disaffirm the purchase. If the latter, it was his duty to do so promptly when the parties could be restored to their original position. Negley v. Lindsay, 67 Pa. 217.
As soon as the appellee discovered the fraud, if he intended to disaffirm the purchase he should have done so, if the parties could then be restored to their original position; and whether they could be so restored was a question for the jury. The learned judge however says: “And with reference to these several points that we have mentioned, that the defendant would have a right to recoup and set off damages, it must not be forgotten that you must consider that, at the time these representations were discovered to be untrue, so much had been done under the contract in reference to the subject-matte]’ of it, that it was impossible to restore the parties to their former position.” This language clearly imports that so much had been done then that the original positions of the parties could not be restored. Thus the learned judge took this question from the jury, and as the facts were disputed the question was for the jury, and should have been submitted to them.
For these reasons the judgment is reversed and a venire facias de novo is awarded.