We can see no error in the rulings or instructions at the trial of this case, so far as they included the points which were in issue between the parties. But it seems to us that they were deficient in wholly omitting to advise the jury as to the rule of law by which they were to be guided in considering one of the grounds of defence relied on by the defendants to defeat the action. The answer sets forth three distinct and substantive allegations, on which the plaintiff’s right to ecover is denied. The first is, that the merchandise, which was the subject of the contract between the parties, was different in kind and quality from that which was delivered. The second is, that the goods were sold by sample, and that those forwarded *551to the defendants did not correspond therewith. The third ground of defence as alleged is, that the plaintiff falsely represented to the defendants that the articles were of a kind and quality suitable for the defendants’ business. The first two allegations or grounds of defence were fully comprehended within the instructions given to the jury, and the rules of law applicable thereto were accurately stated. But the third ground, although alluded to in the instructions, was' left without any apt or precise rulings adapted to meet the phase of the case presented by the facts under this branch of the defence.
' We cannot suppose that the defendants waived their averment of deceit, or did not rely upon it as constituting a sufficient reason for rescinding the contract and refusing to receive the merchandise. Any such inference is excluded by the express statement of their counsel, in answer to an inquiry put by the plaintiff’s counsel, before the charge to the jury, that he did not intend to abandon that ground of defence. The case therefore went to the jury on the distinct and independent issue of a false» representation in the sale of the goods, in addition to the other grounds of defence set up in the answur.
There can be no doubt that a vendee may rescind a contract for the sale of chattels, and refuse to receive or accept them, if the vendor has been guilty of deceit in inducing the former to enter into the bargain. But to maintain a defence to an action for the price of goods on this ground, the same facts must be proved which would be necessary to maintain an action for damages for deceit in the sale of goods. The elements necessary to support such an action or maintain a defence on the ground of deceit were correctly stated in the prayer for instructions on this point, submitted by the plaintiff’s counsel at the trial. This prayer was not only refused in the form in which it was requested, but no adequate instructions were given in elation to this part of the case. There was an omission to state that the sale could not be rescinded on this ground unless the jury were satisfied that the representations were not only false, but that the defendants knew them to be false at the time they were made. This was an essential element which the *552defendants were bound to prove in order to maintain their defence to the action on the ground of deceit, and the plaintiff was entitled to an explicit instruction on this point. The omission to include it in the instructions given to the jury is fatal to the verdict. We have no means of knowing that the jury did not act on this ground of defence, and found their verdict on a misapprehension of the rules of law applicable to it.
Exceptions sustained.