The following opinion was filed at the June term, 1873.
Cole, J.A considerable portion of the brief filed on the part of the plaintiff is devoted to a discussion of questions of fact arising upon the testimony — matters which are not open for examination and review in this court. We cannot, of course,reverse the judgment because our view of the weight of evidence may differ from that taken of it by the jury, or because we might have reached a different conclusion from what the jury did. The only question upon this branch of the case is, whether the jury was warranted in drawing the inference they did in regard to there being fraud in the sale. Upon that point there is some conflict in the statement of the parties who made the contract and knew what really was said at the time of sale. The foundation of the defense is, that the plaintiff and Ingalsbe-were guilty of fraud and deceit when they sold defendant the cattle, in part payment for which the note in suit was given. Was there evidence in the case in support of that defense ? It is impossible to affirm there was not. In its charge to the jury, the court very clearly stated the ground of the defense, and what was essential to establish it, by telling them that in order to sustain it they must find from the evidence that the cattle *58bad been weighed at Milwaukee, and that the plaintiff and In-galsbe knew their weight, and at the time of the sale knowingly and falsely represented their weight to be greater than they had ascertained it to be by actual weighing; and that these representations were made for the purpose of inducing the defendant to purchase the cattle. And he told them that they must further find that the defendant relied on these representations, and was deceived by them to his injury. This was the substance of the general charge upon that point, and it is also, in substance, the first instruction asked by the plaintiff and given by the court. Now, the question is, whether there was any testimony offered on the trial from which the jury might have found that the plaintiff and Ingalsbe represented at the time of sale that the fifty-seven head of cattle would weigh 900 lbs. per head and upwards, and that these representations were made with a fraudulent intent for the purpose of inducing the defendant to purchase at the price agreed upon. It must be conceded that the defendant states in his testimony that the plaintiff and Ingalsbe made these representations or statements in regard to the weight of the cattle he bought of them. This, however, they deny, and say that their statements related to the average weight of the seventy-four head of cattle, and were not made with the intention of influencing the conduct of the defendant one way or the other. Of course, it was.the province of the jury to consider these conflicting statements, and they were at liberty to attach more credit to t.he testimony of the defendant than to that of the plaintiff and Ingalsbe, if in their judgment it was entitled to the more confidence. About this there can be no question.
If the plaintiff and Ingalsbe did in fact make these representations or statements in regard to the weight of the fifty-seven head, there can be no room to doubt that they knew them to be untrue. For it clearly appears from their own testimony that the entire lot of seventy-four head had been weighed the day before in Milwaukee, and fell short of an average weight of 900 lbs. per head. At Chicago, seventeen head of what are *59called “ fat cattle ” were assorted or taken out of the herd, and these were admitted to weigh considerably more per head than the “ stock cattle ” sold the defendant. It is true, the cattle when weighed at Milwaukee were empty of feed and water, and the evidence showed they would weigh from eight to twenty lbs. more per head after full feeding. But the plaintiff and In-galsbe had no ground whatever for honestly supposing that after taking out the “fat cattle,” the others would weigh on an average 900 lbs. per head. And while it may be said they did not know the actual weight of the fifty-seven head, because they had not been separately weighed, yet they had the best means of knowing, and they doubtless did know, that they could not possibly weigh 900 lbs. per head, as represented. And it is no answer, in view of the facts, to say that these statements in regard to the weight of the cattle at that time were mere expressions of opinion or judgment upon the subject — simplex commendatio ; for they had actually weighed the whole, according to their own admissions, and from the nature of the case, knew that the stock cattle would weigh less than 900 lbs. per head. They had actual positive knowledge upon the subject, and cannot be considered as expressing a conjectural opinion where they might be honestly mistaken. Hence, if these representations in relation to the weight of the cattle were in fact made— as we must assume they were, after the verdict of the jury under the charge which was given — then it would also seem obvious that they must have been made with no other purpose or design than to influence the conduct of the defendant and to induce him to buy and pay the price agreed. It appears from the testimony, that in the Chicago market, at the time of the sale, what were known as light and heavy stock cattle, divided upon 900 lbs.,— cattle below that weight being of less value per hundred than cattle above that weight. These statements in regard to the weight were quite material, affecting the market value of the cattle, and would naturally induce the defendant, if he relied on them, to pay more for the cattle than *60be otherwise would ■ have been willing to, or more than he would have paid had he possessed the same accurate knowledge upon the subject that the plaintiff had.
But it is said that the defendant had no right to rely on' these statements, even if made as claimed, because the cattle were at hand where they could be seen-; besides, the scale house was within a short distance, by means of which the true weight could be readily ascertained. It is true the defendant could have weighed the cattle; in fact it appears that he did weigh them immediately after he agreed to buy them at $41 per head.' And on such weighing, it was found that the average weight was less than 835 lbs. per head. And it is said the defendant was then bound to decline to take the cattle, and he could not thereafter insist that he had been misled by the statements of the plaintiff if he consummated'the purchase. But it will be borne in mind that at this time the defendant was ignorant of the fact that these cattle had been weighed with the the other lot in Milwaukee. This important fact he did' not know, for it had been most carefully concealed from him. He might be willing to stand by the contract when he supposed it had been entered into with equal means of information on both sides in regard to the weight. He had a right to assume that the plaintiff and Ingalsbe were dealing fairly, and would not state that the cattle would weigh, in their opinion, 900 lbs. per head and upwards, when they well knew to the contrary. But it seems they stated to him what they knew to be false, and they endeavored to impress him with the belief that the cattle “ were going to weigh over nine hundred,” when by actnal weight they had ascertained that they must fall considerably below that weight. It was the concealment of this fact from the defendant, which, under the circumstances, makes their conduct fraudulent; and it' is no sufficient answer to say that the defendant should have been more vigilant, more suspicious, and more upon his guard. These remarks are intended as an answer to the general discussion indulged in on the part of *61plaintiff’s comise!, wherein it is insisted that the testimony fails to show any fraudulent representations in relation to the weight of the cattle at the time of sale, and that the verdict of the jury is wholly unwarranted by the evidence.
There are some exceptions taken to the ruling of the court on the admission or exclusion of testimony, and to the refusal of the court to give certain instructions, and likewise to the charge as given, which require some further notice.
In consequence of the fraudulent representations of the plaintiff and Ingalsbe, the defendant claimed that he was deceived and imposed upon, and that he was entitled to recover, by way of counterclaim or defense, the damages he had sustained by their fraudulent acts. And upon the question of damages the court, at its own instance, charged the jury that if they found that the defendant was entitled to recover anything on his claim, it would be the difference between what would have been the value of the cattle had they been as represented in weight, and their value according to their actual weight at the time of sale. It seems to us that this was laying down the correct rule of damages. If there was fraud in the contract, the defendant might recoup his damages when sued on the note given in part payment for the cattle. This is what he attempted to do, and he was entitled to recover the difference in value between the cattle as they were and as they would have been in the Chicago market, had they corresponded with the representations as to weight, as a defense in whole or in part to the action upon the note.
Such being the rule of damages, it is claimed that the court erroneously excluded certain evidence offered by the plaintiff to show what the cattle were worth in the Chicago market at the time of sale. The plaintiff, while being examined as a wit: ness, was asked the question : “ What were these fifty-seven head of cattle, which were sold to Butterfield, worth in the Chicago market at the time of sale, by the cwt.? ” This question was objected to and ruled out But subsequently, on the re-.*62direct examination, the witness was permitted to answer the question, and then stated what such cattle were worth in that market. This obviously cured any error there might have been in excluding the testimony in the first instance.
The witness William H. Butterfield was likewise asked what the cattle were worth in Chicago, at the time of sale, per head; and the question, being objected to by the defendant, was excluded. It does not appear upon what ground the court sustained the objection to this question, and I confess I have some difficulty in affirming this ruling. I am not, however, prepared to say that as presented by the record it was erroneous. The question was asked the witness on cross examination, while the subject in respect to the value of the cattle was not gone into on his direct examination. The question may have been ruled out on the ground that it was not proper cross examination. The court might have thought, if the plaintiff wished to examine the witness upon that matter, he should do so by making the witness his own. Moreover there is some reason for saying that the object of the question might not have been understood by the court when asked. The purpose of this question was not stated, and even now, in view of the argument of the counsel for the plaintiff upon this point, we are not certain that the object was to show that the defendant had sustained no damage by the fraud. In Beard v. Dedolph, the rule is laid down, that it is the duty of a party, when evidence offered by him is excluded because inadmissible for the purpose for which it is offered, to inform the court of the object in offering it. 29 Wis., 136. Within this rule it may well be held that the question was properly excluded, though to my mind the better ground upon which to sustain the ruling is that the value of the cattle was not a matter gone into on the direct examination. If the object of the question was to test the knowledge of the witness in regard to the Chicago market for cattle such as those sold the defendant, this should have been stated.
*63The other questions asked the witness, as to whether he made an oilier for these cattle at Columbus on his return from Chicago, and what the cattle were worth at that place, were entirely irrelevant to the issue, and were properly excluded.
We do not deem it necessary to notice the other exceptions taken to the rulings of the court on the admission of evidence, or to the charge of the court. They are in our opinion untenable, and should not reverse the judgment. The plaintiff asked the court to give three instructions, which were refused. The first instruction was as follows: “ If the parties who sold the cattle, and defendant, had equal access to the means of information, or equal opportunity of ascertaining the truth of the alleged statements as to weight, then a mere representation, though false, as to the weight of the cattle, is immaterial, and does not bind the plaintiff.”
The objection to this instruction is, that it was not pertinent to the facts disclosed on the trial. Eor it is admitted that the seventy-four head of cattle had been weighed at Milwaukee, and the plaintiff knew this fact. He knew from actual weight that the stock cattle could, by no possibility weigh “nine hundred pounds per head and upwards.” This fact was concealed from the defendant. The parties did not stand upon an equal footing in regard to the subject matter of the contract, and had not equal means for ascertaining the truth of the statements as to weight. There was a fraudulent concealment of the weight, while affirming that it was greater than they knew it to be.
The second instruction was this: “If the jury shall find that after ascertaining the weight of the cattle in question in this action — the fifty-seven head — the defendant, without protest or dissent, gave the note in controversy and paid the balance of the consideration, then the defendant has chosen to affirm the contract, and must abide thereby, having by his own act waived the alleged fraud and deceit; and the plaintiff is entitled to recover the full amount claimed in the complaint.”
In this case there is no attempt to rescind the contract. Nor *64is there any ground for claiming that the defendant had discovered the fraud which was practiced upon him, when he gave the note in suit and paid the balance of the consideration. He had, .it is true, ascertained the actual weight of the cattle. But he did not then know that the plaintiff and Ingalsbe had been guilty of deceit and fraud. He had treated with them upon the supposition that they knew no more what the cattle-weighed than he did himself, and that what they had said to him upon that subject was an expression of mere opinion. Had this been the case, of course there would have been no fraud in the transaction, even if the cattle did not weigh as much as they represented or said they would. It would then have been a mistake in a matter of judgment in estimating the weight of the cattle, where there would have been no fraud.
The other instruction was: “That if the jury should find, that Birdsey or Ingalsbe, at Green’s office, at the time of the settlement for the cattle, admitted, either by direct admission or by making no reply when asked ( if they were asked), that they had weighed the cattle in Milwaukee, and thereafter the defendant gave the note in question, and check for the balance of the money, the defendant can not sustain his claim in this action.”
This settlement was had the next day after the cattle were purchased and delivered. Whether the defendant would then have been at liberty, to decline to retain the cattle and pay for them, had he known the facts, is a question we need not determine. It is sufficient to say that he did not know that the cattle had been weighed in Milwaukee, though his brother had a strong suspicion that this was the case. But the defendant would not have been warranted in acting on mere suspicion. He was bound, by every principle of law and morals, to faithfully abide by his contract, unless satisfied upon sufficient grounds that the plaintiff and Ingalsbe had been guilty of fraud and deceit in inducing him to enter into it. They did not admit in any way at that time that the cattle had been *65weighed by them, and that they knew their representations in relation to their weight were false.
The court charged very pointedly, that the claim on the part of the defense involved a charge of falsehood, deceit and fraud against the plaintiff and Ingalsbe, and because this was the case strict proof was necessary to support it. The jury have found upon the evidence that this charge was established. The cause seems to have been submitted under clear and proper instructions by the court as to the law applicable to the facts; and the judgment must be affirmed.
By the Court. — Ordered accordingly.