Weston C. J.
delivered the opinion of the Court.
It is contended, that the defendant had no interest in the sale to the plaintiff', having previously agreed to sell to Smith, and that he merely executed a contract of sale made by him. The jury, however, have found that he made representations which he knew to be false, with the intent that the plaintiff should bo defrauded, and that he was thereby defrauded. In the leading case of Pasley v. Freeman, 3 T. R. 51, it was decided, upon great consideration, that if a party make a false affirmation, although he has no interest of his own to serve, whereby another sustains damage, he is liable to an action.. The same principle was recognised in Haycroft v. Creasy, 2 East, 92, but it was there holden that, to charge the party upon such false affirmation, he must have known it to be false, and have made it with the design that another should be injured, although ho himself had nothing to gain by it. These cases are noticed with approbation, by Marshall Ch. Justice, in delivering the opinion of the Court in Russell’s ex’rs. v. Clark’s ex’rs. 7 Cranch, 69, where he says, “ if an act in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of jurisprudence is more defective than lias hitherto been supposed.” Upton v. Vail, 6 Johns. 181, adopts Pasley v. Freeman; but in Young & al v. Covel, 8 Johns. 23, it was held that deceit is the gist of the action, and that a fraudulent design must be proved in the party attempted to be charged. And we are of opinion that this objection cannot avail the defendant, even although his agreement with Smith may have been fairly made.
[266] It is urged that the jury should have been instructed, that the defendant had not occasioned the plaintiff any injury, as his interference was after the contract, made by the plaintiff with Smith. But the false affirmations, made in writing under the defendant’s hand, were used by Smith, before the contract was made.. Afterwards, and before the deed, the truth of the affirmations in writing were re-asserted to the plaintiff, by the defendant in person. If he had then truly represented the state of the lands to the plaintiff, he would not have accepted the deed, and would have been furnished with matter of defence against the contract, which he could not, under such facts, have been compelled to execute.
It is further insisted that the charge is not supported, because the jury have found that the difference between the value of the lands, and the price agreed to be paid for them is not much over ten per cent. There may be a failure of proof of fraud from inadequacy of price, upon which the case did not turn, but upon; other distinct and independent grounds.
But the main point, upon which the defence is placed, is, that upon the facts the plaintiff is without remedy, either at law or in equity. That he should have examined the land for himself, or taken covenants for his protection, and that if he is injured, it is the consequence of bis own folly and imprudence. ? 'That he has sustained damage, occasioned by the fraud of the defendant, the jury have found ; and if he is denied a remedy, it is withheld rather by the policy of the law, than the dictates of morality. The principle of caveat emptor has certainly been extensively-applied in suits at law; especially in the sale of real estate. And it has not been without its influence, in the sale of personal chattels. It is not easy to reconcile all the cases upon this subject. Some of them have been more indulgent to fraud and misrepresentation, than is consistent with morals, or the common sense of mankind. The case of Pasley v. Freeman is distinguished for its high moral tone ; and the general principles there laid down, if carried out, would sustain an action at law against the defendant.
One of the earlier cases, of an opposite character, is Chandler v. Lopus, Cro. Jas. 4, where a jeweller sold a stone,- as and for a bezoar stone, for a high price, when it was not a stone of that [267] description. And the court held that the party injured was without remedy, even if the defendant knew at the time that it was no bezoar stone. This case is justly and pointedly reprobated by Parker C. J. in Bradford v. Manly, 13 Mass. 139, who insists that it cannot be received as law in this country, and would not at the present day be recognised in England. The case of Bayley v. Merrill, Cro. Jas. 196, was decided a few years after Chandler v. Lopus, in the same reign, where the plaintiff, a carrier, was injured by giving credit to the false affirmation of the defendant, that a quantity of madder, which weighed twenty-two hundred, was only of the weight of eight hundred pounds, for which it was liolden that no action could be sustained.
The opinion of Lord Rosslyn, in Outfield v. Round, 5 Vesey, jun. 508, has been cited by the counsel for the defendant, from Sugden, where a contract had been made for the purchase of a meadow, without any notice of a foot way around it and across it. His Lordship decreed a specific performance, saying he could not help a purchaser, who did not choose to inquire. There the vendor was merely silent. It would doubtless have been otherwise decided, if he had falsely and fraudulently affirmed that there was no footpath ; for it was a bill for specific performance ; and the court would not have exerted its discretionary power, to aid such a party. As it was, Lord Manners said, in 1 Ball and Beatty, 350, that he believed the bar was not very well satisfied with that decision.
In Powell v. Clark, 5 Mass. 355, a tract of land was described in the deed as containing a certain number of acres; this was holden not to amount to a covenant that the land did contain that quantity. But it has been held, as it ought to be, a good defence to a hill for specific performance of a contract for the purchase of real estate, that there was not so much land, as the contract described. 3 Page, 94, Veedor v. Fonby. Of the same character was the case of Dyer v. Lewis, 7 Mass. 284, where a sloop was described in the bill of sale, as of greater tonnage, than she proved upon admeasurement.
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Weston C. J.
delivered the opinion of the Court.
It is contended, that the defendant had no interest in the sale to the plaintiff', having previously agreed to sell to Smith, and that he merely executed a contract of sale made by him. The jury, however, have found that he made representations which he knew to be false, with the intent that the plaintiff should bo defrauded, and that he was thereby defrauded. In the leading case of Pasley v. Freeman, 3 T. R. 51, it was decided, upon great consideration, that if a party make a false affirmation, although he has no interest of his own to serve, whereby another sustains damage, he is liable to an action.. The same principle was recognised in Haycroft v. Creasy, 2 East, 92, but it was there holden that, to charge the party upon such false affirmation, he must have known it to be false, and have made it with the design that another should be injured, although ho himself had nothing to gain by it. These cases are noticed with approbation, by Marshall Ch. Justice, in delivering the opinion of the Court in Russell’s ex’rs. v. Clark’s ex’rs. 7 Cranch, 69, where he says, “ if an act in itself immoral, in its consequences injurious to another, performed for the purpose of effecting that injury, be not cognizable and punishable by our laws, our system of jurisprudence is more defective than lias hitherto been supposed.” Upton v. Vail, 6 Johns. 181, adopts Pasley v. Freeman; but in Young & al v. Covel, 8 Johns. 23, it was held that deceit is the gist of the action, and that a fraudulent design must be proved in the party attempted to be charged. And we are of opinion that this objection cannot avail the defendant, even although his agreement with Smith may have been fairly made.
[266] It is urged that the jury should have been instructed, that the defendant had not occasioned the plaintiff any injury, as his interference was after the contract, made by the plaintiff with Smith. But the false affirmations, made in writing under the defendant’s hand, were used by Smith, before the contract was made.. Afterwards, and before the deed, the truth of the affirmations in writing were re-asserted to the plaintiff, by the defendant in person. If he had then truly represented the state of the lands to the plaintiff, he would not have accepted the deed, and would have been furnished with matter of defence against the contract, which he could not, under such facts, have been compelled to execute.
It is further insisted that the charge is not supported, because the jury have found that the difference between the value of the lands, and the price agreed to be paid for them is not much over ten per cent. There may be a failure of proof of fraud from inadequacy of price, upon which the case did not turn, but upon; other distinct and independent grounds.
But the main point, upon which the defence is placed, is, that upon the facts the plaintiff is without remedy, either at law or in equity. That he should have examined the land for himself, or taken covenants for his protection, and that if he is injured, it is the consequence of bis own folly and imprudence. ? 'That he has sustained damage, occasioned by the fraud of the defendant, the jury have found ; and if he is denied a remedy, it is withheld rather by the policy of the law, than the dictates of morality. The principle of caveat emptor has certainly been extensively-applied in suits at law; especially in the sale of real estate. And it has not been without its influence, in the sale of personal chattels. It is not easy to reconcile all the cases upon this subject. Some of them have been more indulgent to fraud and misrepresentation, than is consistent with morals, or the common sense of mankind. The case of Pasley v. Freeman is distinguished for its high moral tone ; and the general principles there laid down, if carried out, would sustain an action at law against the defendant.
One of the earlier cases, of an opposite character, is Chandler v. Lopus, Cro. Jas. 4, where a jeweller sold a stone,- as and for a bezoar stone, for a high price, when it was not a stone of that [267] description. And the court held that the party injured was without remedy, even if the defendant knew at the time that it was no bezoar stone. This case is justly and pointedly reprobated by Parker C. J. in Bradford v. Manly, 13 Mass. 139, who insists that it cannot be received as law in this country, and would not at the present day be recognised in England. The case of Bayley v. Merrill, Cro. Jas. 196, was decided a few years after Chandler v. Lopus, in the same reign, where the plaintiff, a carrier, was injured by giving credit to the false affirmation of the defendant, that a quantity of madder, which weighed twenty-two hundred, was only of the weight of eight hundred pounds, for which it was liolden that no action could be sustained.
The opinion of Lord Rosslyn, in Outfield v. Round, 5 Vesey, jun. 508, has been cited by the counsel for the defendant, from Sugden, where a contract had been made for the purchase of a meadow, without any notice of a foot way around it and across it. His Lordship decreed a specific performance, saying he could not help a purchaser, who did not choose to inquire. There the vendor was merely silent. It would doubtless have been otherwise decided, if he had falsely and fraudulently affirmed that there was no footpath ; for it was a bill for specific performance ; and the court would not have exerted its discretionary power, to aid such a party. As it was, Lord Manners said, in 1 Ball and Beatty, 350, that he believed the bar was not very well satisfied with that decision.
In Powell v. Clark, 5 Mass. 355, a tract of land was described in the deed as containing a certain number of acres; this was holden not to amount to a covenant that the land did contain that quantity. But it has been held, as it ought to be, a good defence to a hill for specific performance of a contract for the purchase of real estate, that there was not so much land, as the contract described. 3 Page, 94, Veedor v. Fonby. Of the same character was the case of Dyer v. Lewis, 7 Mass. 284, where a sloop was described in the bill of sale, as of greater tonnage, than she proved upon admeasurement.
Lysney v. Selby, 2 Lord Raymond, 1118, was an action at law, which was sustained against the vendor of an estate, for affirming that the rent of the estate was higher than it was in truth. [268] In Bliss & al. v. Thompson, 4 Mass. 488, the plaintiffs had been induced, by the false and fraudulent representations of Thompson, to sella their interest in certain Kentucky lands, and Thompson having realized, from a prior warrantor of the plaintiffs, a greater sum, was holden answerable to them, in an action for money had and received, for the difference. The court there say that, “ not only good morals, but the common law requires good faith, and that every man in his contracts should act with common honesty, without overreaching his neighbor, by false allegations or fraudulent concealments.” Hill v. Gray, 1 Starkie’s Rep. 434, was an action brought to recover the price, which the defendant had agreed to pay for a picture. • It did not prevail, because the plaintiff’s agent had suffered the defendant to purchase, under an illusion, which he knew existed in his mind, which he did not remove, that it belonged to another individual.
The common law does not require the vendor to disclose defects, which are open to the observation of both parties. Nor does it afford a remedy for false assertions in regard to what is matter of opinion and judgment, as to the value of the property sold. 2 Kent, 381, and the cases there cited. In Vernon v. Keys, 12 East, 631, which related to the sale of certain buildings, &c. Lord Ellenhorough, in delivering the opinion of the .court, says, “a seller is unquestionably liable to an action of de-: ceit, if he fraudulently misrepresent the quality of the thing sold, to be other than it is in some particulars, which the buyer has not equal means with himself of knowing ; or if he do so in such a manner, as to induce the buyer to forbear making the inquiries, which for his own security and advantage, he would otherwise have done.
Sugden on Vendors, 221, Phila. edition, treating of defects in the quality of an estate, sold or contracted - for, states that the yule, caveat emptor, generally applies; and therefore, although there be defects in it, yet if they are patent the purchaser can have no relief. Yet he cites several cases^ where a false description being given, in relation to points open to detection, relief has been afforded in equity, by decreeing compensation to the pur-: Phaser.
[269] In Dale v. Rooservelt, 5 Johns. ch. 174, relief was afforded where a false representation had been made by the defendant, of the existence of a valuable coal mine on the bank of the Ohio river, on a tract of land, which the plaintiff’s testator had thereby been induced to purchase. And in McFerran v. Taylor & al. 3 Cranch, 270, in chancery, it was holden that he, who sells property, on a description given by himself, is bound in equity to make it good.
The rule of caveat emptor is useful in the community, it leads to vigilance and circumspection ; an d sorvs to check litigation. It is a sufficient answer to mere silence, in regard to defects open to observation. And it is not every falsehood, against which common prudence might guard, which will entitle a party injured by it, to appeal to a court of law' or equity for redress, The line which separates cases, where the rule of caveat emptorapplies, from others which call for relief, is not defined with entire precision. Each one will rest, in some measure, upon its peí culiar circumstances. In the case before us, we are of opinion that relief ought to bo afforded, and that the jury were properly-instructed. ' When Smith made the contract with the plaintiff, he did it upon the strength of a written document, furnished by the defendant, giving a minute and particular description of each lot. Before the deed was made, the defendant presented himself to the plaintiff in the character of one, who having previously sold to Smith, had no interest in the conveyance, then about to he made. lie was known to be a man of high standing and respectable character. Upon the earnest inquiry of the plaintiff he re-asserted all that was contained in the written description he had before furnished, saying if he made any alteration, it would be to represent the land more favorably. That was in the wilderness, at the distance of an hundred miles. ’ We cannot but say, that all this assurance, thus repeated, coming from a source, claiming to be disinterested, was calculated to put common prudence off its guard. The defendant, in his answer, says that he did believe that he was justified in the statement he made to the plaintiff, and that it was correct and fair, in his judgment, from the information he possessed. We hope for his sake, that this averment is true, although the jury have not given credit to it. [270] His character will call for a favorable interpretation of bis acts, among those who know him.
The jury having found the issue, submitted to them, in favor of the plaintiff, and having settled the amount of damage sustained by him ; and the Court having taken the whole matter into consideration, do hereby decree and order, that the deed of conveyance, made by the defendant to the plaintiff, of the lands in controversy, be held good and valid ; that the plaintiff pay the amount of his notes given therefor, with interest; and that the defendant pay to the plaintiff the amount of the damages awarded by the jury in his favor, with interest thereon from the time of the verdict to the time of rendering this decree; and that he further pay to the plaintiff his legal costs,