The testimony tended to prove the allegations of the answer as to the impure quality of the ice. It further showed that defendant had paid all the other notes but those sued upon. It also tended to show that the fact of the ice being packed prevented defendant from learning its quality by an inspection. The court instructed the jury to find for plaintiff unless he made false representations to the defendant as to the quality of the ice. This was improper. There was *290evidence tending to prove that plaintiff had knowledge of the impure quality of the ice. It being so situated that defendant could not discover such defect, it became plaintiff’s duty to disclose it, and his failure to do so was a fraudulent concealment of a latent defect. The case shows that plaintiff knew that defendant was purchasing the ice as a retail dealer for the purpose of retailing to purchasers in quantities which might be needed and for the usual purposes of patrons of the retail trade; the suppression, therefore, of a fact which made the ice unfit for such purpose was a deceit. Grigsby v. Stapleton, 94 Mo. 423. The evidence showed that plaintiff had gathered and packed the ice and must have known its quality. The defects shown, if they materially affected it for the purpose of its purchase, and were unknown to defendant, should have been disclosed to him by plaintiff. Fair dealing required this. And this is true, notwithstanding the fact defendant may have sought and gotten information from third parties. For, however much he may have endeavored to learn the quality and condition of the property, it was plaintiff’s duty not to take advantage of his failure. In other words, it was an obligation resting on plaintiff, founded on law and morals, to disclose to defendant any hidden matter which materially affected the property. This case does not belong to that class of cases where one party places no reliance on the representations of the other. Nor is it a necessary prerequisite that an express warranty be shown. Nor will the fact that defendant failed to rescind the contract, but sold out the ice, bar him of his defense; he has his option to rescind the contract or stand on it and recover damages. Parker v. Marquis, 64 Mo. 38; Cahn v. Reid, 18 Mo. App. 115.
The measure of defendant’s damages, ordinarily, would be the difference in the value of the ice as it actually was and what it would have been worth if it *291had been of good- merchantable quality. But as it appears that defendant has sold it out, if he received the same prices which he would have received for that of a merchantable quality, he would not be entitled to any damage, for the single reason that no damage resulted. If, however, the inferior quality caused extra waste or loss or imposed extra expense in its sale, such matters should be taken into consideration.
These, remarks are a sufficient disposition of the objections to instructions which have been urged before us and will indicate the view we entertain of the case. We might remark in addition that on a retrial the court should be careful to avoid an apparent assumption of the disputed points of the cause, and thus avoid the criticism of counsel made for that reason. The judgment is reversed and the cause remanded.
All concur.