delivered the opinion of the court.
This is what is known as an action for deceit. It is not based upon the deed given nor upon the contract entered into, but upon alleged fraud by which appellant was induced to enter into the contract ultimated by mutual deeds. Such an action will lie although the parties have entered into a written agreement, thus merging therein the previous negotiations, because the complaint of the plaintiff is of fraudulent practice by which he was persuaded to contract; and such action may be maintained although there be a written warranty or stipulation upon the point covered by the misrepresentations complained of. Antle & Bro. v. Sexton et al., 137 Ill. 410-414; Linington v. Strong, 107 Ill. 295-302.
If, when parties are dealing with each other, one makes a positive and material statement upon which the other, to his knowledge, acts, and such statement is known to him who made it, to be false, his conduct is fraudulent and he can take no benefit therefrom.
The exceptions to this rule, that the party to whom the representation is made must use reasonable diligence to guard against the fraud perpetrated upon him and can not close his eyes to the obvious, etc., it is unnecessary to now comment upon.
A mere expression of opinion as to a material fact is not equivalent to a positive affirmation.
A question presented to the jury in this case was, did appellee state as a fact, that the farm contained 164 acres, or did he speak of its containing 164 acres in a manner that showed appellant that he was expressing only an opinion.
As to this the jury were fairly instructed and have found for appellee. The evidence upon this question is such that we can not say the jury were not warranted in finding the verdict they did.
Appellant had purchased the lands constituting the farm at various times and from various parties. He had seven deeds conveying to him by metes "and bounds, course and distance; these deeds were shown to appellant and from them the deed to them was drawn by appellant’s attorney. These instruments plainly show that only by a survey and computation could one know how- many acres were included therein.
As before said, they are by course and distance, metes and bounds, containing recitals one “ about 110 acres, the same not having been computed;” another “ containing two acres to be the same, more or less; ” another “ containing eight and 50-100 of an acre, to be the samp, more or less; ” another “ containing eighteen acres by estimation to be the same more or less; ” another “ containing twelve acres and 60-100 of an acre;” another “containing by estimation three and one-half acres, more or less;” another “ containing thirteen acres, more or less.”
These recitals amount to 167.10 acres; deducting therefrom a three and a half acre tract appellee declared he did not intend to sell, leaves 163.60 acres.
It does not appear that appellee had had the premises surveyed or knew any more as to the quantity of land than the deeds disclosed.
If other instructions equivalent to the eleventh asked by appellant had not been given it should have been. So, too, we regard the testimony that appellant said be would sell the farm back for $3,000, as inadmissible; but it could have had no effect upon the question of alleged fraud.
We find no error warranting a reversal of the judgment and it is affirmed.