The peremptory ruling of the judge, that the plaintiff, upon the evidence, was not entitled to maintain this action, was erroneous. Cases like the present, involving the issue of fraud and deceit in procuring a contract, are eminently proper for the consideration of a jury, because, ordinarily, the main fact is not susceptible of positive proof, but is to be inferred from the acts and declarations of parties, and the various circumstances which attend upon and give character to the particular transaction which may be the subject of inquiry. The fraudulent intent, which is essential to entitle a party to rescind a contract on the ground of fraud, is necessarily a matter of proof to be made out to the satisfaction of a jury, and cannot be properly determined by the court as a- matter of law. In the case at bar, the evidence' tended to show something more than a mere suppression of facts which were known to the defendants, but of which the plaintiff and his agent were ignorant. If nothing further had appeared, it would have been difficult for the plaintiff to have held his verdict, if he had obtained one, although even in that case it would have been proper to have submitted the cause to the jury. Laidlaw v. Organ, 2 Wheat. 178.
But there was evidence in the present case which, if believed, had a strong tendency to prove that the defendants, at the time of the execution of the contract for the sale of the timber, made representations to the plaintiff’s agent, concerning the quantity of land upon which the wood was standing, which were not only false, but were known by them to be false, and which might well have had a material influence on the mind of the plaintiff’s agent, and have induced him to make the contract with the defendants. Upon such a state of proof, it was the right of the plaintiff to go to the jury. The contract having been seasonably rescinded by the plaintiff by a tender to the defendants of the note- and money which they had given for the timber, h'e would have been entitled to a verdict, if he satisfied the jury that his agent had been induced to enter into the contract for the sale of the timber by the fraudulent misrepresentations of the defendants.
Exceptions sustained.