The complaint is very inartificially drawn, and it is not entirely clear whether the pleader intended to count upon fraud, or upon a mistake and breach of warranty. • On the trial, however, the defendant claimed, and requested the court so to charge, that unless the evidence proved that fraud had been intentionally practiced on the plaintiff by the defendant, by showing one piece of land as the subject of sale, and then inserting the description of a different tract in the deed, there could be no recovery. In other words, unless there was, on the part of the defendant, an intention to defraud or cheat, he *138was not bound to make compensation for any damages which, the plaintiff had sustained in failing to obtain the land which he supposed he was purchasing. The court refused to give the instruction, but told the jury, in substance, that if they found that the defendant showed the plaintiff a lot belonging to a third person, as the one about which they were negotiating, and which was to be conveyed, and if the plaintiff, relying upon the defendant’s statements, supposed he was obtaining the lot pointed out, then the defendant was liable, whether he knowingly or by mistake showed the wrong lot. The material question for our consideration arises upon the refusal to give the instruction asked, and as to the correctness of the proposition given.
There can be no doubt that a court of equity would rescind a contract and set aside a conveyance on the ground of mistake merely, when the vendor has undertaken to sell something which he did not own, and the land embraced in the deed, though owned by him, is not that which the vendee intended to purchase. That is a familiar head of equity jurisdiction. But the cases are not so frequent where an action at law has been brought to recover damages for such a mistake or constructive fraud. On principle, it is difficult to see why the legal remedy does not exist. The counsel for the plaintiff claims that an action at laiw is maintainable, and he insists that where a vendor undertakes to point out to the purchaser the boundaries of his land, he is under obligation to point them out correctly, and has no right to make a mistake, except under the penalty of responding in damages. This position seems founded in reason and justice, and we are inclined to think that it is sustained by authority. In the case of Bennett v. Judson, 21 N. Y., 238, it was held that the vendor of land was responsible for material misrepresentations in respect to its location and qualities made by his agent, without express authority and in the absence of any actual knowledge by either the agent or the principal whether the representations *139were true or false. It is true tbe action in that case was founded on tbe fraud; but it was not claimed tbat any actual fraud was shown. And tbe question of law, as stated by Com-stooK, O. J., was, whether the representations could be deemed fraudulent unless known to be false, and the point was ruled in the affirmative. Now, while the gravamen in this action is not fraud and deceit in pointing out the boundaries of the lot, yet does 'this constitute any legal objection to the defendant’s being held liable for the consequences of his mistake? It seems to us not.
The objection is taken, that the justice had no jurisdiction to try the cause, because the title to land was involved. "We are unable to see how title was involved; but if it was, it is certain that the defendant did not take the steps necessary under the statute to have the benefit of the objection. State v. Huck, 29 Wis., 202.
By the Court. — The judgment of the circuit court is affirmed.