This is an action on the case for the false warranty of a horse, in the common form of declaring in such cases.
The evidence showed that the defendant, in reply to an inquiry made by the plaintiff in making the purchase, whether the horse was sound, said that he was so far as he knew. It was proved that the horse was in fact unsound at that time. The evidence showed that the defendant, before he sold the horse, and on the occasion of purchasing him of Currier, had discovered unsound appearances indicating some trouble, or at any rate, some unusual condition in the horse ; and that, when he made the purchase of Currier, he was told that he must take him at his own risk — that he must not expect him, Currier, to take him back if he was mad or crazy ; — and that, while the plaintiff was driving the horse on trial, pending the negotiation of the trade between the pi dntiff and defendant, the defendant was told by the two Benedicts, how the horse acted a few days before on two occasions of being shod, and on account thereof that they did not think the horse was sound ; and specifically that he acted as if he had fits, — and that they told him truly. In a few minutes after this, on the return of the plaintiff in trying the horse, he made the said enquiry and received the said answer from the defendant, as to the soundness of the horse, and thereupon the trade was closed.
The court upon all the evidence, failed to find that the defend*557ant really believed that the horse was unsound ; — but they found, “ that he had reasonable and good ground to suppose that he was, and that he knew that if he communicated what he had discovered, and what had been told him in relation to the horse, it would be likely to prevent the plaintiff or any purchaser from buying the horse, or materially lessen the price he could obtain for him, and lessen his value in the estimation of the plaintiff, or any purchaser.” What the defendant had observed, and what was told him constituted the reasonable and good ground for supposing the horse to be unsound What he thus observed and was thus told him, would lessen the value of the horse in the estimation of any purchaser. These facts, then, were material, as bearing upon the subject matter of the trade. And though, in point of fact, they may not have operated to produce full belief in Wheeloek’s mind that the horse was unsound, still being material facts looking in the direction of the unsoundness of the horse, and constituting reasonable and good ground for supposing Mm unsound, and the defendant knowing, as the court have found, that these facts would lessen his value in the estimation of the plaintiff or any buyer, the conclusion is irresistible that the defendant did know facts which tended to show the' horse unsound, and which rendered untrue what he told the plaintiff, that the horse was sonnd so far as he knew.
If the defendant would have placed himself on safe ground, instead of making such a reply to the plaintiff’s enquiry, he should have stated those facts, thus constituting a good ground for supposing him unsound, to the plaintiff, and might, if he had seen fit, have áecompanied it with any amount of positive asseveration of his disbelief of any unsoundness, or of his affirmative belief that the horse was sound.
The manner of stating the case leaves it somewhat equivocal, whether the court mean to leave it with no finding as to whether the defendant believed the horse to be sound, or to find that the defendant did not believe him to be unsound. But we do not regard it important how the exceptions should be construed in this respect. The question is not whether the defendant made a fraudulent expression of his belief; but whether he made a fraudulent expression in saying' “ the horse was sound so far as he *558knew.” If he knew any thing contrary to the truth of that statement, then the statement was not true. The court upon warrantable evidence, have found that he did. The court have also found that he knew that those facts would lessen the value of the horse in the estimation of the plaintiff or any purchaser. Here, then, arose? the duty to tell the truth in his reply to the plaintiff’s enquiry,' and his failure to do so operated the fraud complained of and found by the county court.
We think the county court put the case upon the ground of affirmative misrepresentations, rather than of wrongful concealment of facts which were material and ought in good faith to have been disclosed ; and we think this the warrantable ground on which to place the decision of the case. This renders it needless to discuss the much mooted doctrine and the cases as to the duty of the vendor to make full disclosure of all material facts as to the quality and condition of the article of sale, under the head of' suppressio veri, and leaves that subject for the present to stand in this state upon the adjudications hitherto made.
Placing the decision of the case, as we do, on the "ground of affirmative fraudulent representation, it falls within principles and rules of application that are too well settled and familiar to require any discussion.
The judgment is affirmed.