The pleadings show, and appellee properly concedes, that this is an action for deceit based upon certain alleged false and fraudulent representations concerning .the quality' of molasses. The action not being based upon a contract of warranty, verbal or written, it is obvious at a glance that instructions numbered, respectively, four and five were erroneous. These instructions are based upon the idea that the suit was upon oral representations that amounted to a verbal contract of warranty, and they authorized recovery if appellant’s agent made cértain representations in regard to the molasses which proved to be false, .regardless of whether such representations or verbal warranty was made or given to deceive and defraud the party to whom it was made or given. Such instructions might be proper in a suit upon a contract of warranty, verbal or written. But they have no place in a case where the action is purely one for deceit and fraud, as in the case at bar. In an action on a warranty, of course, a breach of the warranty entitles the party in whose favor it is given to recover, regardless of whether the representations constituting it were fraudulent and made with the intent to deceive or not. Hanger v. Evins, 38 Ark. 339, 340. But not so in an action purely for deceit and fraud. In such cases the essentials are that the representations shall not only be false, but fraudulent. They must be made by one who either knows them to be false, or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect. Yeates v. Pryor, 11 Ark. 58; Hanger v. Evins, 38 Ark. supra; Johnson v. St. Louis Butchers’ Supply Co., 60 Ark. 387.
The instructions were misleading. They confused the issue. The proof necessary to recovery in an action for deceit is essentially different from that necessary to maintain an action on contract of warranty. The jury had no correct guide for applying and weighing the evidence, and the evidence was admitted without a clear apprehension of the issue.
It was a close question of fact, on the evidence, as to whether or not there were false representations, in the first place, and, if there were false representations, it was a still closer question as to whether they were made with the intent to defraud. There was some evidence, however, and we would not disturb the verdict of the jury upon the facts of the case, had the law been declared. But we are convinced that the failure to define the issue, and to conform and confine the instructions to it in a case of nice balance of the facts was exceedingly harmful error.
The written order was properly admitted in evidence, and the oral testimony in regard to the alleged false representations set up in the complaint was not in conflict with it.
Other questions are discussed, and objections made to other instructions,' but we have sufficiently indicated the theory upon which the case should be tried on the issue presented, and doubtless the trial judge will conform the proceedings on a new trial accordingly. For the error indicated reverse the judgment, and remand the cause for new trial.
Hi DU, C. J., did not participate.