The opinion of the Court was drawn up by'
Shefley J.Whether the jury came to a right conclusion upon the facts before them cannot be the proper subject of inquiry here upon a bill of exceptions. The case is not in a position to be examined as it would be on a petition or motion for a new trial. The only subjects for consideration here, are those legal questions apparent in the bill of exceptions, and which were decided by the presiding Judge. The first is, whether evidence to prove, that the defendant was induced to accept the lease by the false and fraudulent representations of the plaintiff was, under the circumstances, legally admissible. The circumstances relied on to show, that such testimony was incompetent or irrelative are, that the defendant had seen the premises before taking a lease of them ; had boarded with the plaintiff, then the occupant, part of the winter before the term commenced ; had, entered under the lease and occupied the premises for one year or more; and had paid the first instalment due for rent. The argument is, that under such circumstances he could not, or ought not to have been deceived ; and that if deceived he must be regarded as having waived the right to make such a defence. The case does not shew any other knowledge acquired by the defendant before making the contract, than what must be inferred from the fact, that he “ had been at the premises the fall before he moved there.” How long he remained there before the ninth of December, when the lease was executed, or what opportunity he had to examine, or to make inquiries does not appear. From such a fact alone the Court could not have properly decided that the defendant was by law precluded from proving that he was deceived by the false representations of the plaintiff. It is said, that the rule caveat emgtor should have been applied. That rule is not *424applicable to a case like this, but to cases in Which -there is no proof of false representations, or of warranty.
One is not bound by a false representation or warranty so clearly and obviously differing from the fact, that every person having the use of the common organs of sensation must know it to be erroneous ; for reliance is to be placed upon the knowledge which these áfford rather than upon the statements of any one. This, however, is not a case of that description. It has been decided also, that the seller is not bound by- representations respecting the value of the property sold, because it is a matter which maybe equally known to both parties. A representation relating to the income or rent of an estate does not come within this rule for the reason, that the -knowledge of it may be, and usually is, confined to one party-; and the other can be presumed to ascertain it accurately only from him, or from those standing in a confidential relation to him. Henc-e one making such a false representation is bound by it. Leakins v. Clissel, 1 Lev. 102; Lysney v. Selby, 2d Ld. Ray. 1118; Bowring v. Stevens, 2 C. & P. 337; Cross v. Peters, 1 Greenl. 389.
It is true, as alleged in the argument for the plaintiff, that the defendant could not then rescind this contract. But the defence was not placed upon' the ground that he had rescinded it, and was to recover back what he had paid. It rested upon the position that the plaintiff could not c'ompel the defendant further to execute a contract which originated in his own false and fraudulent representations. And the cases cited shew, that he may make such a defence, unless after a full knowledge of all the facts, he has come to a new agreement, or has voluntarily waived all objections |o it. In this 'case there is no proof of any new agreement; and nothing from which a waiver can be inferred, except the facts before stated, and certain remarks which he afterward made to the witnesses respecting the contract-. He could not come to a full and certain knowledge of what would be the amount of business or of profits yearly, until the end of a year; although it would be true that each month or shorter period would afford him an accumulation of knowledge strongly tending to satisfy the mind that the representations must have been false. But he cannot be justly regarded as voluntarily confirming a contract belieyed to be fraudulent, because he did not *425repudiate it at an earlier period upon a violent presumption of fraud, instead of waiting for the close of the year, when it would become so certain that it could be clearly proved. Nor does the fact that he continued to perform on his own part by paying the first instalment, and the remarks made to the witnesses, and his residence in the plaintiff's family during the previous winter, all taken in connexion with the remarks made to the plaintiff at the time of making the payment, authorize any such inference. Much less do all these matters authorize a court to come to such a conclusion and state it as matter of law. And this it must have done before the testimony could have been excluded.
The cases of Percival v. Blake, and Cash v. Giles, cited by plaintiff’s counsel, do not decide that mere delay to give information of defects, precludes the party from availing himself of them in defence in cases where the contract was entered into through false representations. So far from it, Ch. J. Abbott, in the former case says to the jury, “ if you think that any deceit was practiced, then you will find your verdict for the defendant.”
Objections are now made in argument to particular statements made by the witnesses, and to the expression of their opinions and belief. No such objections appear to have been made to the testimony at the time of the trial. An objection to the admission of testimony of a particular description or class, as in this case to parol testimony, to prove the contract to be fraudulent, do not extend to, or imply any objection to any question, or to any answer of the witnesses during the examination. When the court in this case decided that testimony to prove that the contract was procured by fraud was admissible, it cannot be understood to have decided that any loose remarks which witnesses introduced for that purpose might offer, unless checked, were legal testimony. That the objections were only to testimony of whatever description it might prove to be for the purpose proposed, is quite clear, for they appear from the case to have been made only before the introduction of any such testimony, and on the occasion of its being proposed. There are doubtless remarks made by the witnesses which were not legal testimony, but there being no indication of any other than such general objection, they must be regarded as having been received without objection. Nor is there any thing in the case from *426which this Court can conclude with certainty that they were not called out by the plaintiff.
These observations are equally applicable to the objections relating to the testimony introduced to prove, that the premises were “ not worth more than two hundred dollars for a year.” Such testimony being necessary to prove that some of the plaintiff’s representations were false, “ and it being appropriate ro the count for use and occupation,” it was properly admitted.
The Judge properly refused to comply with the first request, for the reason among others, that it erroneously assumed as a fact, that the payment of rent was made without objection. And with the second, because it assumed as proved, matters proper for the jury only to decide, and for the reasons which have been already stated while speaking of the admissibility of the testimony.
The third request and the .arguments to sustain it, appear to have arisen out of an impression that the rent was a semi-annual and not an annual rent; and that the payment of the first instalment was an extinguishment or payment of it for a period of six months. But the case states, that it was a yearly rent, the lease being for three years, and at a rent of $800 yearly. The fact that one half of it was to be paid semi-annually would no more constitute it a half yearly rent, than a provision would, that one half should be paid in advance, or in thirty or sixty days after the entry upon the premises. If repairs chargeable to(the landlord had been made by the tenant, or the landlord had omitted the performance of a stipulation of importance to the tenant during the first six months, could it be contended that because the first instalment of the rent had been paid without bringing these matters into account, .the tenant had forfeited all claim to have them allowed, on an adjustment at the eiid of the year ? The balance claimed in this suit arose no more but of one period of the occupation than, another. It was only a balance of a yearly rent; and the payment made by the defendant would legally be regarded only as so much paid towards one integral sum of $800 as a yearly rent, and no more applicable to one portion than to another of the occupation of that year. It was part of the yearly rent, and not the rent for any specified number of months that was paid. If the Judge erred, it was in submitting this as a matter to be decided by the jury, .instead, of re*427garding it as a question of law arising out of the contract to be decided by himself.
The counsel’s construction of the fourth request appears to be, that it required the Judge simply to inform the jury, that the payment of the first instalment of the rent was a fact among others, from all of which they might infer, that the defendant did not then consider, that the plaintiff had deceived him. The language used would not present to the minds of a jury any intimation, that they were at liberty to draw such an inference or not, as they should think proper, from that fact taken in connexion with the other facts in the case. The word “ evidence,” if not inaccurately used for the word “ proof,” would, as there used, have been likely to have conveyed the same idea to their minds, and to have left upon them the impression, that from that single fact they were bound to infer, that the defendant did not then consider, that the plaintiff had deceived him, although at the same time he informed him that he did consider, that he had been guilty of misrepresentation. It is a sufficient objection to this request, that the effect of a compliance would have been to mislead instead of enlighten the minds of the iiiry-
Exceptions overruled„