delivered the opinion of the Court:
This was an action on the case, by appellees, against appellants, to recover damages for fraud and deceit in the sale of timber standing oh the land of one Jameson. The subjects-of the sale were the timber that had been bought by appellants from Jameson, a saw-mill and its appurtenances, and thirteen acres of timber on the Hadley land. The sum of $3000, in gross, was paid for the property, no separate prices-being fixed for the different articles. The ground of fraud relied on was the representation that the tract of timber bought from Jameson contained eighty acres, when in fact the Jame-son contract only conveyed to appellants thirty acres of timber. Appellees recovered in the circuit court judgment for $900, and that judgment was affirmed in the Appellate Court,, and the cause was brought here on a certificate of importance..
In the written contract signed by the parties it is recited, that the appellants agreed as follows:
“Second—That they hereby assign and transfer to said Sexton & Bybee all interest which they have acquired in and to-about eighty acres of saw-timber in Gardner township, Sangamon county, Illinois, under a contract heretofore entered into by the said N. C. Antle & Bro. with one S. H. Jameson.
“Fourth—They hereby agree to assign over to said Sexton ,& By bee the written contracts with said Jameson & Hadley, ■above referred to.”
It is suggested by appellants, that where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is open to inspection, the purchaser can not be heard to say that he was deceived by the vendor’s misrepresentations, and fault is found that the court instructed the jury, that if the representation was made “in such a way and under such circumstances as to induce a .reasonably prudent man to believe that the matter stated was -true,” and if the plaintiffs, “in the exercise of reasonable prudence, believed the representation to be true,” etc., it sufficiently sustained the action for deceit. The false representation consisted in misstating the terms of the Jameson contract, ,and the parties did not stand upon an equal footing in respect thereto. Said contract was in the possession of appellants, and they had full knowledge of its provisions, while appellees did not have access to it, and it was withheld from their inspection upon a plausible pretext stated by appellants. The land upon which the timber grew was in a peculiar shape, and was contiguous to other timber lands, and although the timber was pointed out to appellees, yet it is manifest that without a knowledge of the boundaries and an actual measurement, no person could tell the number of acres in the tract. In numerous instructions given by the court, the knowledge of appellants that the representation was false, and the fact that the same was made with the intent and for the purpose of deceiving and defrauding appellees, were made conditions precedent to the right of recovery. Surely, where a misrepresentation is made as to a material fact, and such misrepresentation is made knowingly, and for the express purpose of deceiving and defrauding, and the party injured relies upon-the statement made, and under circumstances which would induce a reasonably prudent man to so rely, there must be a right of action at law for fraud and deceit. To throw a purchaser out of court in such case, upon the plea he did not avail himself of the means of knowledge open to him, would-be offering a-premium on fraud, and would be destructive of confidence in business transactions. There was no error of which appellants can complain in instructing the jury as above indicated. Linington v. Strong, 107 Ill. 295; Endsley v. Johns, 120 id. 469; Schwabacker v. Riddle, 99 id. 343; Hicks v. Stevens, 121 id. 186.
In the opinion of the Appellate Court, by Wall, J., reference is made to the second clause of the written contract between appellants and appellees, which is quoted, above, and also to the fact that at the trial the appellants moved to exclude from the jury all the oral evidence and representations referring to the subject matter of said second clause. Said opinion then proceeds as follows:
“The motion was overruled, and the point was presented*, by instructions asked for defendants, which were refused. It is urged that in the action of the court herein there was error, the position of counsel being, ‘that the writing was the best-evidence of the contract; that it was the ultimate fact to be-proved, and oral proof could not be substituted for the written: evidence of any contract which the parties have put in writing - that the writing was tacitly agreed upon by the parties as the-only repository and the appropriate evidence of their agreement.’ The action was not brought upon the contract, but upon false representations and deceit, used to induce the plaintiffs to enter into the contract, whereby they have been damnified. It is well settled that such an action will lie though1 the parties may have entered into a written agreement, and though in such agreement there be a warranty or stipulation-upon the point covered by the misrepresentations. (2 Addi-' son on Torts, 1004; 1 Chitty’s Pl. 137, note 4; 1 Hilliard on Torts, secs. 4, 5, 12; Ward v. Wiman, 17 Wend. 193; Eames v. Morgan, 37 Ill. 260.) And so it will lie if in the written contract there is no reference to the subject of the deceitful statements.
“In the present instance it is difficult' to say what is the significance of the descriptive language used in the second: clause as to the quantity of acres in the Jameson tract. It-' is said that they assign all interest which they have acquired in and to about eighty acres of saw-timber, etc. The phrase is rather ambiguous. We are not required to determine whether it amounts to a warranty that the contract they held covered-eighty acres, for, as we understand the law, it is immaterial whether the written contract omits any reference to the subject of misrepresentation, or whether it contains a provision of warranty in that respect. The theory of the action is, that for the fraudulent and deceitful representation of the defendant, inducing plaintiff to make a contract which he would not have made otherwise, and by which he has been damaged, he should have his remedy, and this regardless of any remedy the law might afford upon the contract itself. As remarked by Nelson, C. J., in Ward v. Wiman, supra, ‘the fraud is not merged nor extinguished by the covenant, but affords an additional and more complete remedy to the party.’ We are of ■ opinion the ruling of the circuit court upon this point was-correct.”
We concur in the view thus taken by the Appellate Court,
We also agree with the views expressed in the Appellate-Court opinion in respect to the measure of damages. Upon that matter Wall, J., says:
“The rule adopted was the difference in value between the saw-timber obtained and what would have been obtained if there had been eighty acres of it,—that is, calculate a shortage of fifty acres at the price per acre which it was shown to-be worth,—and the verdict was $100 less.than under the evidence might have been allowed. In Field on Damages, sec. 706, the rule is stated thus: ‘In cases of fraudulent representations of the quality or quantity of property sold, the general rule of damages is the difference between the value of the property as it is and what it would be worth if the representations had been true.’ .To the same effect see Sedgwick on Damages, marg. page 559, where, after a similar statement of the rule with regard to personal property, the author adds: ‘‘The same rule, I apprehend, holds upon the sale of real.estate,. where the action is for deceit,’ citing Whitney v. Allaire, 1 Comst. 305. So it was laid down in Drew v. Beall, 62 Ill. 164, where the deceit was in regard to quality.
“Counsel for appellants urge that there was error in refusing «evidence tending to show, that, notwithstanding the shortage, plaintiffs got the worth of their money in the whole trade ;• but we are unable to agree with this position. The plaintiffs were entitled to the benefit of their bargain, as was said in Drew v. Beall, supra. There was no contract price on specific items. It was a general price for all, and they had a right to expect everything as represented.
“An expression in Hiner v. Richter, 51 Ill. 299, is quoted as supporting counsel’s position, where it is said that the plaintiff would be entitled .to the purchase money on the deficient quantity, and interest thereon. It does not appear precisely what were the facts alleged, but from the language of the court it would seem there was a contract price per acre fixed by the parties, and if so, the agreed rate would naturally furnish the basis of damages. Such was not the case here. We think there is no sound distinction between quality and quantity in this respect.”
The judgment of the Appellate Court is affirmed.
Judgment affirmed.