On motion for rehearing.
Philips, P. J.I. It is first suggested, in justification of this motion, that the judgment of reversal is placed upon grounds not distinctly made and relied upon by appellants in their brief; and, therefore, respondent’s counsel did not cite the authorities now relied upon to show that the instructions criticised in the opinion have been substantially approved by the Supreme Court. The case of McKenzie v. Railroad, 24 Mo. App. 396, 397, is cited in support of the proposition *417that, unless the appellant shall point out in his brief the specific errors relied on for reversal, this court will not search through the record to discover the errors only-designated in some vague or general way. As applied to the facts of that case, the observations of the learned judge who delivered the opinion were just and appropriate. The errors assigned were, that the trial court admitted or refused evidence that was competent, material, and relevant, or the reverse, without pointing out what particular evidence, thus leaving the court, without a guide, to grope and search through a record of three hundred and forty pages to make the discovery, and then without any assurance that the matter discovered was that relied on by the general suggestion.
The statute directs the appellant or plaintiff in error to file in the cause a specific assignment of errors “on or before the first day on which causes from the same circuit are set for hearing, in default of which such assignment of errors the appeal or writ of error may be dismissed,” etc. The other party shall then join in such error within four days. Rev. Stat., secs. 3764, 3765. Where no such assignment of errors is made, the court will dismiss the writ, etc. 57 Mo. 602; 51 Mo. 412; 59 Mo. 143; 44 Mo. 604; 32 Mo. 230. This is to make an issue in this court. The statute directs us to examine the record, as presented here, on the assignments, and to affirm or reverse, as the fact and law maybe. The brief of counsel is designed to aid the court in its investigation of the case. But we are by no means limited in our inquiry or conclusions to the points made or grounds taken in such brief.
In the assignment of errors in this case, the action of the lower court in giving and refusing instructions is distinctly alleged for error. Although counsel in their brief might urge one or more special criticisms and objections to the instructions, yet, if the court, in its examination, should discover other patent error or objection, it could not shut its eyes to the fact and the law, *418and, by passing it in silence, leave it as a precedent—as having received the tacit approval of the court. This, as experience and observation have taught us, is too frequently the case, to the misleading of attorneys and trial courts, and to the embarrassment of the appellate court when the matter again comes up for review.
If some instruction contains a verbal inaccuracy or hidden technical defect, to which the attention of the court was not called by appellant, and the court should affirm the judgment, the appellant ought not to be heard afterwards to complain. But where the error, as in this case, was patent, and acted on by the court, it can be no ground for a rehearing, at the motion of the respondent, that the appellant, in his brief and argument, laid no special stress on the error. This much we deem it important to say touching this practical matter of appellate practice.
II. It is conceded in the motion for rehearing, that fraud and deceit constitute the gist of this action ; and that the burden of establishing the existence of the fraud rests upon the plaintiff. But it is contended that the instructions given on behalf of plaintiff met the requirements of the law, and gave the defendants as much as they were entitled to on this issue.
The gist of the action being, as all the courts agree, the intent to deceive, with consequent damage, it is a question of fact to be found by the jury. While the mode of proving this essential fact may vary with the attendant circumstances of each particular case, the central idea and principle remains fixed, that the element of fraud must be made to appear in some form or other. And while it is true, as asserted by the learned counsel, that it is not essential that actual falsehood should be uttered to give the right of action, it is as equally true that the mere utterance of a falsehood, or a fact, is not alone sufficient. The language of Naptow, J., in Dulaney v. Rogers, 64 Mo. 203, 204, is, that the plaintiff must prove that the party making the false statements may have “believed, or had good reason to *419believe, at the time he made them; that they were false, or that he assumed or intended to convey the impression that he had actual knowledge of their truth, though conscious that.lie had no such knowledge.” Again he says, it must appear “that a representation is made which is known to be false.”
So the instruction approved by the court contained the essential requirement. This is again distinctly brought out by Norton, J., in Kenny v. Railroad, 80 Mo. 572, in which he says: ‘' The generally received doctrine now is that,, in order to support an action for fraudulent representations, it is not sufficient to show that a party made statements which he did not know to be true and which were in fact false. There must be fraud as distinguished from mere mistake. It is not, however, always absolutely necessary that an actual falsehood should be uttered to render a party liable in an action for deceit; if he states material facts as of his own knowledge, and not as a mere matter of opinion, or a general assertion about a matter of which he has no knowledge whatever, this distinct wilful statement, in ignorance of the truth, is the same as the statement of a known falsehood, and will constitute a scienter.” In this it is to be observed that the assertion of a fact as of his own knowledge is qualified with the words “ in ignorance of the truth.” This was necessarily so to make it harmonize with the holding of Napton, J., supra.
So in the later case of Nauman v. Oberle, 90 Mo. 669, the instruction approved was, that/‘if defendant falsely and fraudulently represented, etc., and knew the representation was not true.”
Applying these rulings to the instructions under review, it will be found that while they were framed with some regard to the rule, yet they are so artfully (not in an invidious sense) drawn, as to not unreasonably warrant the jury in making the inference that if defendants stated that they owned the property, as of their own knowledge, and that statement turned out to be untrue, the scienter was proved without more. They do *420not contain the essential words, or the equivalent, “though conscious that they had no such knowledge,” or that they were aware of the fact ‘ ‘ that they did not know,” or that it was “known to be false,” and the like.
The fraudulent intent being the gist of the action, the defendants were entitled to have this issue of fact distinctly and sharply submitted to the jury, in such perspicuous language as to leave no just grounds for their minds being misled. As said in Gray v. McDonald, 28 Mo. App. 492, approving the language of Story, J., in Livingston v. Ins. Co., 7 Cranch, 544: “'If in any point of law, the defendant was entitled to such direction, the court erred in its refusal, although the direction afterwards given by the court might, by inference and argument, in the opinion of this court, be pressed to the same extent. For the party has a right to a direct and positive instruction; and the jury are not to be left to believe in distinctions where none exist, or to reconcile positions by mere argument and inference. It would be a dangerous practice, and tend to mislead instead of enlightening the jury.”
It is clear to our minds that the instructions, as drawn by plaintiff, were not calculated to convey as they should to the apprehension of ¿he jury the real gist of this issue.
The motion for rehearing is denied.
All concur.