For a general statement of the transactions upon which this action is founded, reference may be made to the opinion in a former action between these parties, reported in 47 Minn. 131, (49 N. W. Rep. 688.) That action was prosecuted for the purpose of securing a rescission of an exchange of real estate. The plaintiff, having failed to secure that relief, commenced and prosecutes this action, ex contractu, to recover damages for breach of the representations concerning the New York property contained in the letter of the defendant, upon which representations, and the warranty expressed in the letter, the plaintiff claims to have relied in making *95the exchange of his real estate, situate in Minnesota, for that of the ■defendant, in the city of New York. This is an appeal by the plaintiff from an order refusing a new trial, a verdict having been rendered against him. So much of the case as we are called upon to consider is presented by a bill of exceptions.
The letter of the defendant addressed to his agents Canby & Cathcart, and placed in their hands, previous to the negotiations which resulted in an exchange being made by deed, considered by itself and alone, did not constitute a contract, or impose any obligation on the defendant. It would not become effectual to bind the defendant until it should be accepted by some one who should purchase the defendant’s property, influenced by and relying upon the representations and warranty therein expressed. It is to be taken as admitted by the pleadings that these representations were held out to the plaintiff as inducements to him to make the exchange, which was subsequently effected by mutual conveyances by deed. The question whether, the plaintiff can recover in this action depends upon the facts as to whether in-making this exchange, he relied, either solely or in part, upon the representations set forth in the letter, and, if so, then whether the representations relied upon were or were not in accordance with the facts. As to the law bearing upon this feature of the case, it is to be said that if the plaintiff relied upon these representations as being true, if they constituted a substantial inducement to the making of the exchange, even though he may have also been influenced to some extent by information derived from other sources, the representations and expressed warranty thus relied upon and acted upon became obligatory on the defendant as a contract. McCormick v. Kelly, 28 Minn. 135, (9 N. W. Rep. 675;) Warder v. Bowen, 31 Minn. 335, (17 N. W. Rep. 943;) Safford v. Grout, 120 Mass. 20; James v. Hodsden, 47 Vt. 127. It may be added that, if the plaintiff actually knew that any one or more of the several representations were not true, he could not have been influenced by such representations, and they cannot therefore be regarded as entering into the contract. McCormick v. Kelly, supra. It may be doubted whether, as a matter of pleading, the answer does not, in legal effect, admit that to some extent the *96plaintiff did rely on these representations. But as there is reason to doubt whether the parties did not themselves construe the pleadings as putting that matter in issue, we will not pass upon this question of pleading; it being unnecessary for the purposes of this appeal. We will assume, as the view most favorable to the respondent, that this matter was in issue. It was without doubt a question of fact, under the evidence, for the jury to determine, whether the plaintiff did not, to some extent, at least, rely on these representations. The jury may have found that he did rely, or was influenced partially, but not solely, thereby. It was important that they should understand that in such a case the defendant became legally responsible for the truth of the representations relied upon. The court instructed the jury upon that subject, but in such terms as must probably have left the jury in doubt as to the principle of law governing such a case, even if they did not actually misapprehend the law. For instance, the jury were instructed— and this was excepted to — that “if the plaintiff looked for himself, made investigations, made inquiry, took his chances, and did not rely so much upon the letter as upon individual investigation and judgment, then the plaintiff could not recover.” We put in italics two words to indicate the misleading and erroneous character of this instruction. Elsewhere the court used language calculated to convey the same erroneous impression as to the law, although it is to be added that there was also language used, to the effect that the plaintiff might recover if he relied on the letter exclusively or in part. In brief, we must say that there was error in the charge, and it is by no means clear that the jury were not misled. This necessitates a new trial, and we deem it unnecessary to refer to several of the other assignments of error; but some of them should be noticed.
If the bill of exceptions gives to us a correct understanding of the case, the evidence tending to show that Canby & Catheart, the defendant’s agents for the sale or exchange of his lands, also acted as agents for the plaintiff in negotiating the exchange, was not subject to objection because of the fact that such agency for the plaintiff had not been pleaded in the answer. For the purpose of showing notice to the plaintiff as to the condition of the property, notice to any au*97thorized agent might be shown, without the fact of such agency having been pleaded. Hence, the fifth and thirteenth exceptions and assignments of error were not well taken.
In view of the disclaimer before the jury of any right to recover by reason of one of the lots being only nineteen feet wide, although in the letter it was said to be twenty feet wide, the appellant’s assignment of error respecting that matter could not be sustained. We will, however, say that if (as from the charge of the court seems probably to have been the case) the negotiations were consummated by a deed of conveyance in which the lot was described as being only 19 feet 'wide, the plaintiff could not well claim to have relied to any extent upon the previous representation as to the width of this lot.
The former action for rescission does not preclude the plaintiff from recovering damages in this action for a breach of the representations and warranty. In the former case it was decided that the right to rescind, which right must be exercised promptly if at all, had been lost by a failure of the plaintiff to seasonably avail himself of it, and by conduct respecting the property inconsistent with an intention to exercise that right, and amounting to an election not to do so. But the prosecution of that action without avail did not preclude resort to the remedy here sought. The former action did not involve a determination of the right of action now relied upon. Marshall v. Gilman, 47 Minn. 131, 136, (49 N. W. Rep. 688,) nor is there any such inconsistency between the two actions that by resorting to the former the plaintiff can now be deemed to have lost, by force of the doctrine of election, the right to maintain this action. If the plaintiff had first sued for damages for breach of the contract, that would probably have constituted an election to abide by the sale, so that he could not have afterwards maintained an action to rescind. But the plaintiff’s conduct has not been thus inconsistent. Even in the former action the making of the contract for the breach of which he now seeks to recover was not denied, but affirmed. He sought to avail himself of a remedy which he was not entitled to. What was said In re Van Norman, 41 Minn. 495, 497, (43 N. W. Rep. 334,) is applicable here. See, also, Strong v. Strong, 102 N. Y. 69, (5 N. E. Rep. 799.) The mere fact that the plaintiff, a'fter he had lost the *98right to rescind, sought in vain to avail himself of that remedy by action, should not bar his right to recover damages on the contract.
Order reversed, and new trial granted.
(Opinion published 58 N. W. Rep. 811.)