delivering the opinion of the court:
The one question presented in this case by the assignments of error is whether the court below was justified in instructing the jury that there was no such evidence of fraud in the case as would warrant the defendant below in rescinding his contract of sale.
In Freeman v. Topkis, 1 Marvel 178, 40 Atl. 949, Chief Justice Lore states the law as follows: “What constitutes fraud is a question for the court, whether the fraud was actually committed is a question of fact for the jury.”
[1, 2] When fraud is set up as a defense, the fraud must be proved, and is not presumed, or to be established by slight proof *174or trivial circumstances. Actual fraud is always a matter of fact, and must be proved and established as such in any case, but what will constitute an actual fraud as will vitiate and avoid a contract of this kind, is a question of law, and it is therefore the province of the court to say and instruct the jury whether the evidence was sufficient for that purpose.
In Pearce v. Carter, 3 Houst. 385, Chief Justice Gilpin very aptly suggests that it is not every false representation, even when made with a full knowledge of its falsity, that will amount, in judgment of law, to such a fraud as will invalidate a contract and deprive a party of his right to enforce it, and Chancellor Bates in Reznor v. Maclary, 4 Houst. 254, lays down the general principles of law governing contracts that are attacked on the grounds of fraud or misrepresentation in the following language: “In order to avoid a transaction on account of them (misrepresentations) three things are requisite—1st, the misrepresentations must relate to something material and substantial; 2d, the transaction sought to be avoided must appear to have been induced by it. The party aggrieved must have been actually misled by it; and 3rd, his confidence must have been a reasonable one. Except in these cases, even betrayed confidence is not a ground of relief.”
In the case before us the negotiations between the parties seem to have been open and fair. The defendant below and the authorized agent of plaintiff company came together personally and after a conference that necessarily occupied a considerable period of time, agreed upon a sale of one thousand tons of stone. The questions asked by defendant as to the use that was to be made of the stone, and as to the financial standing and responsibility of plaintiff company, seem to have been promptly and satisfactorily answered so that before the conference ended, a proposition as to price, etc., was made in writing by defendant and accepted at once by the agent of plaintiff company. No elements of concealment or unfairness are shown in the negotiations, they appear to have been open and aboveboard.
The defendant below defends his breach of the contract on three grounds,—that false statements were made by plaintiff *175company, first, as to where the stones were to be used; second, as to the credit of plaintiff company, and, third, as to certain work being paid for that had been done theretofore for plaintiff company by another party.
[3] As regards the first contention, there is some conflict in the testimony as to whether representations were made that the stone bought by plaintiff company from defendant was to be used on the contract at Cross Ledge Light on which defendant was an unsuccessful bidder some months previous. Defendant in his testimony states very positively that he was not willing to furnish stone for that particular job, and he objected to so doing on the ground that to do so would violate a business principle, or policy, which he had established for himself, viz., not to furnish stone for any work to a principal contractor in cases where he, the vendor, had theretofore bid unsuccessfully in competition to supply stone to such principal contractor for the same work. It did not appear to the court below nor does it appear to this court that there was any element of fraud or misrepresentation in any statement made regarding the use of the stone that was vital or material to the contract in this case.
[4] The defendant evidently relied upon the second and third contentions but as regards both he signally failed to establish fraud of a material or substantial nature. No evidence was adduced that in the least undermined the credit of plaintiff company or that tended to show financial weakness; on the contrary plaintiff company showed by affirmative testimony that it paid its debts and was in good credit.
The evidence as to payments made on the Cross Ledge contract was not entirely clear but the fact was established that full settlement had been made for all work for which bills had been rendered up to the time of the making of the contract now in dispute, so the evidence on the third point likewise failed in establishing material and substantial fraud such as would avoid the contract.
These facts appearing from a careful reading of the testimony; and the law as laid down by the court below being in accord with previous decisions of the courts of this state, we find no error *176in the rulings or charge of the court below and so order that the
Judgment below be affirmed.