Martin, J.
The appellants contend that the evidence in this case was insufficient to justify the court in submitting to the jury the question of the defendants’ fraud, or to uphold the verdict in this case. The question of the [416] defendants’ fraud, as submitted to the jury, was made dependent upon whether they fraudulently represented to the plaintiff that the Oneida county farm had kept during the season 100 head of cattle and 16 horses. Thus, at the outset, we are led to examine the evidence to discover whether it was sufficient to justify the jury in finding that this representation was made by the defendants, or either of them. On the trial the plaintiff’s husband was called as a witness, and testified that the defendant Joshua Mather “asked him if Lovelace had shown him the stock and crops; that he said ‘he had, and that he [Lovelace] says that the crops you estimate to be three thousand bushels of oats, and five or six hundred bushels of rye;’ to which Mather replied: ‘ More than that; we had a large crop,—a fine crop; it is one of the most and best productive farms in Oneida county.’ He said he could keep one hundred head of cattle there and sixteen horses, and the farm would support them.” The witness, who was the agent of his wife, also testified that he believed the representation that Mather made to him “that he kept from the products of that farm, then upon it, one hundred head of cattle and sixteen horses.” The defendants denied that they made these representations. The question whether the defendants represented that the farm kept 100 head of cattle and 16 horses was submitted to the jury in a charge which was eminently fair to the defendants, and the jury found that the representation was made by them. If the plaintiff’s husband was to be believed, the evidence was sufficient to justify that finding. If the language testified to by him was used by the defendant Joshua Mather, it was obviously his purpose and intent to convey to the mind of the plaintiff’s husband the idea that the farm did keep and maintain, the season through, from the products thereof, that .number of cattle and horses. The question of the credibility of this witness was for the jury. By its verdict it has found him worthy of belief. It is true the evidence was conflicting, but, still, the question was for the jury. “It is the clear province of the jury to deal with facts, especially in cases of conflict of testimony, and the province of the jury only. To justify an appellate tribunal in setting aside a verdict on the ground that it is against the weight of evidence, it must be entirely against the weight of evidence. A new trial will not be granted where the testimony is contradictory, and the character and credit of the witnesses questioned, on the ground that the verdict is against the weight of evidence. The verdict of a jury, in cases of conflict of testimony, can only be set aside when the case itself presents the evidence that the jury must have been influenced by passion, prejudice, or mistake.” Morss v. Sherrill, 63 Barb. 21; Hayes v. Thompson, 2 Hun, 518; Chaffee v. Morss, Id. 602; Roosa v. Smith, 17 Hun, 139; Betsinger v. Chapman, 24 Hun, 15, 17; Baird v. Mayor, etc., 96 N. Y. 567; Holmes v. Young, 6 N. Y. Supp. 924.
That this was a question of fact for the jury was held by this court on a former appeal in this case. 8 ÍT. Y. Supp. 940. We think the finding was sustained by the evidence, and should not be disturbed. Therefore, in the further consideration of this case, it must be assumed that this representation was made. The jury also found that it was false, and known by the defendants to have been false when made, and was made with an intent to cheat and defraud the plaintiff. Assuming, as we must, that the representations were made, the findings that it was false, known to be so, and made with an intent to defraud the plaintiff, are fully sustained by the evidence. It is, however, contended by the appellants that the plaintiff did not rely upon such representations, and hence was not entitled to recover in this action. > The appellants’ claim is that the plaintiff’s husband and agent had a full opportunity to and did examine this farm, and thus become possessed of a full knowledge of its quality and condition, and of its capacity to keep stock; that it was upon his knowledge, obtained by this examination, that the plaintiff relied in making the exchange, and not upon the representation [417] of the defendants. The extent of the examination made, and the opportunity the plaintiff’s husband had to determine the quality and character of this farm, and its capacity to keep stock, was the subject of dispute on the trial. If the evidence of the plaintiff’s husband was relied upon, and there was some evidence corroborating it, the jury was justified in finding that he did not have a fair or sufficient opportunity to examine the farm, and that the plaintiff relied upon the representations of the defendants in making the trade. The court submitted to the jury the question whether the plaintiff’s husband and agent had such an opportunity to examine this farm that neither he nor his wife could be heard to claim that they were drawn into this trade by the defendants’ misrepresentation. The court, in effect, charged that if the exercise of common prudence and caution on the part of the plaintiff’s husband would have enabled him to avoid being imposed upon by the defendants, then there could be no recovery in the case. Under this charge, which was certainly as favorable to the defendants as they were entitled to, the jury found with the plaintiff.
The plaintiff also proved that she refused to make the trade upon any examination that had been made, and informed the defendants that, if there was a trade to be effected, she traded wholly upon their representations; that she would not take her husband’s judgment, nor the judgment of any other man, upon the farm, from an examination made at that time of the year; and that it was upon those conditions that the trade was to be made, if they traded; that the defendant replied “tnat she could not make a mistake on that farm; it was one of the best and most productive farms in the country;” to which her husband replied: “1 know nothing about this farm, only what you say. I made no inquiries of no man, only you. Mrs. Schumaker asked me whether you were responsible parties. I told her I considered you were. ” In reply to which the defendant said: “We are good for what we say or agree to do.” The plaintiff also testified that she relied upon their representation as to the number of head of cattle and horses he kept, and about the-quantity of grain they raised, and about its being the best farm in Oneida, county, and that she would not have made the exchange if she had not relied upon them. This evidence not only tended to show that the plaintiff relied upon the defendants’ representations, and not upon the examination made by her husband, but also that the defendants intended that she should rely upon them. We think the evidence was sufficient to justify the jury in finding, that the representations made were relied upon by the plaintiff.
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Martin, J.
The appellants contend that the evidence in this case was insufficient to justify the court in submitting to the jury the question of the defendants’ fraud, or to uphold the verdict in this case. The question of the [416] defendants’ fraud, as submitted to the jury, was made dependent upon whether they fraudulently represented to the plaintiff that the Oneida county farm had kept during the season 100 head of cattle and 16 horses. Thus, at the outset, we are led to examine the evidence to discover whether it was sufficient to justify the jury in finding that this representation was made by the defendants, or either of them. On the trial the plaintiff’s husband was called as a witness, and testified that the defendant Joshua Mather “asked him if Lovelace had shown him the stock and crops; that he said ‘he had, and that he [Lovelace] says that the crops you estimate to be three thousand bushels of oats, and five or six hundred bushels of rye;’ to which Mather replied: ‘ More than that; we had a large crop,—a fine crop; it is one of the most and best productive farms in Oneida county.’ He said he could keep one hundred head of cattle there and sixteen horses, and the farm would support them.” The witness, who was the agent of his wife, also testified that he believed the representation that Mather made to him “that he kept from the products of that farm, then upon it, one hundred head of cattle and sixteen horses.” The defendants denied that they made these representations. The question whether the defendants represented that the farm kept 100 head of cattle and 16 horses was submitted to the jury in a charge which was eminently fair to the defendants, and the jury found that the representation was made by them. If the plaintiff’s husband was to be believed, the evidence was sufficient to justify that finding. If the language testified to by him was used by the defendant Joshua Mather, it was obviously his purpose and intent to convey to the mind of the plaintiff’s husband the idea that the farm did keep and maintain, the season through, from the products thereof, that .number of cattle and horses. The question of the credibility of this witness was for the jury. By its verdict it has found him worthy of belief. It is true the evidence was conflicting, but, still, the question was for the jury. “It is the clear province of the jury to deal with facts, especially in cases of conflict of testimony, and the province of the jury only. To justify an appellate tribunal in setting aside a verdict on the ground that it is against the weight of evidence, it must be entirely against the weight of evidence. A new trial will not be granted where the testimony is contradictory, and the character and credit of the witnesses questioned, on the ground that the verdict is against the weight of evidence. The verdict of a jury, in cases of conflict of testimony, can only be set aside when the case itself presents the evidence that the jury must have been influenced by passion, prejudice, or mistake.” Morss v. Sherrill, 63 Barb. 21; Hayes v. Thompson, 2 Hun, 518; Chaffee v. Morss, Id. 602; Roosa v. Smith, 17 Hun, 139; Betsinger v. Chapman, 24 Hun, 15, 17; Baird v. Mayor, etc., 96 N. Y. 567; Holmes v. Young, 6 N. Y. Supp. 924.
That this was a question of fact for the jury was held by this court on a former appeal in this case. 8 ÍT. Y. Supp. 940. We think the finding was sustained by the evidence, and should not be disturbed. Therefore, in the further consideration of this case, it must be assumed that this representation was made. The jury also found that it was false, and known by the defendants to have been false when made, and was made with an intent to cheat and defraud the plaintiff. Assuming, as we must, that the representations were made, the findings that it was false, known to be so, and made with an intent to defraud the plaintiff, are fully sustained by the evidence. It is, however, contended by the appellants that the plaintiff did not rely upon such representations, and hence was not entitled to recover in this action. > The appellants’ claim is that the plaintiff’s husband and agent had a full opportunity to and did examine this farm, and thus become possessed of a full knowledge of its quality and condition, and of its capacity to keep stock; that it was upon his knowledge, obtained by this examination, that the plaintiff relied in making the exchange, and not upon the representation [417] of the defendants. The extent of the examination made, and the opportunity the plaintiff’s husband had to determine the quality and character of this farm, and its capacity to keep stock, was the subject of dispute on the trial. If the evidence of the plaintiff’s husband was relied upon, and there was some evidence corroborating it, the jury was justified in finding that he did not have a fair or sufficient opportunity to examine the farm, and that the plaintiff relied upon the representations of the defendants in making the trade. The court submitted to the jury the question whether the plaintiff’s husband and agent had such an opportunity to examine this farm that neither he nor his wife could be heard to claim that they were drawn into this trade by the defendants’ misrepresentation. The court, in effect, charged that if the exercise of common prudence and caution on the part of the plaintiff’s husband would have enabled him to avoid being imposed upon by the defendants, then there could be no recovery in the case. Under this charge, which was certainly as favorable to the defendants as they were entitled to, the jury found with the plaintiff.
The plaintiff also proved that she refused to make the trade upon any examination that had been made, and informed the defendants that, if there was a trade to be effected, she traded wholly upon their representations; that she would not take her husband’s judgment, nor the judgment of any other man, upon the farm, from an examination made at that time of the year; and that it was upon those conditions that the trade was to be made, if they traded; that the defendant replied “tnat she could not make a mistake on that farm; it was one of the best and most productive farms in the country;” to which her husband replied: “1 know nothing about this farm, only what you say. I made no inquiries of no man, only you. Mrs. Schumaker asked me whether you were responsible parties. I told her I considered you were. ” In reply to which the defendant said: “We are good for what we say or agree to do.” The plaintiff also testified that she relied upon their representation as to the number of head of cattle and horses he kept, and about the-quantity of grain they raised, and about its being the best farm in Oneida, county, and that she would not have made the exchange if she had not relied upon them. This evidence not only tended to show that the plaintiff relied upon the defendants’ representations, and not upon the examination made by her husband, but also that the defendants intended that she should rely upon them. We think the evidence was sufficient to justify the jury in finding, that the representations made were relied upon by the plaintiff.
The appellants also claim that the court erred in submitting to the jury the? question “ whether the plaintiff’s husband, because he represented her, was in-such a position, under this provision of the law, that he, having a full opportunity to examine, will not be heard to allege that he was drawn into this-trade by misrepresentation.” To properly understand this portion of the charge, and its purpose and effect, the whole of that portion of the charge which related to this subject should be considered; as an appellate court will not seize hold of isolated portions of a charge for the purpose of discovering error. If the charge, as a whole, conveys to the jury the correct rule of law upon a given question, the judgment will not be reversed. If the language-used is capable of different constructions, that one will be adopted which will lead to an- affirmance of the judgment, unless it fairly appears the jury was, or at least might have been, misled. Caldwell v. Steam-Boat Co., 47 N. Y. 282; Losee v. Buchanan, 51 N. Y. 492. Upon this question the appellants-in their brief state: “On the undisputed testimony of all the witnesses, including Schumaker, he had a full opportunity to examine the Home farm, and to obtain just as much knowledge about it, its soil, productiveness, and what it had, did, or would keep, as the plaintiff had or knew. On the evidence, there was no issue raised as to this. The court should have so held upon the trial, instead of submitting this question to a jury to speculate upon. The [418] evidence was all one way on this subject, and under the cases cited (Long v. Warren, 68 N. Y. 426, 432; Vandewalker v. Osmer, 65 Barb. 556) this question should have been so decided by the court.” One error in this claim is the assertion that the undisputed evidence disclosed that the plaintiff’s husband had a full opportunity to examine the farm, and obtain the same knowledge of it as the’defendants possessed. Such is not the case. If the testimony of the plaintiff’s husband was believed, he did not have a fair opportunity to examine the farm, owing to the short time he was upon it, the season of the year when made, the snow upon the ground, and his sickness on the second occasion, by reason of which he was unable to remain upon the farm a sufficient length of time to make a complete examination of it. Under the evidence, the question whether he had such an opportunity to examine it as would prevent the plaintiff from claiming that she was induced to make the trade by the defendant’s misrepresentation was a question of fact, and properly submitted to the jury. The representation made by the defendants, which was relied upon as the ground of recovery in this action, related to the amount of produce raised; and, while it had a direct bearing on the quality of the farm, it could not well have been accurately verified by ^n examination of the land. Moreover, the proof discloses that the plaintiff expressly refused to make the exchange upon the examination of her husband, or upon any examination that could be made at that time of the year, and informed the defendants that she would trade only in reliance upon their representations. The cases cited do not justify us in holding that the court erred in not holding as a matter of law that the plaintiff could not recover because of the opportunity her husband had to examine this farm. In Institution v. Burdick, 87 N. Y. 49, it was said: “The authority of that case [Long v. Warren, supra]should not be extended to cases not clearly within the principles there laid down. It is certainly not just that one who has perpetrated a fraud should be permitted to say to the party defrauded, when he dem'ands relief, that he ought not to have believed or trusted him. Where one sues another for negligence, his own negligence, contributing to the injury, will constitute a defense to the action; but where one sues another for a positive, willful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise, the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evil-doers.” When we examine the whole of the charge upon this subject, we find in it no error that would justify us in disturbing the judgment.
Again, it is contended that the court erred in submitting to the jury the question “ whether the elder Mather made a representation, the idea of which, without giving the precise language, was that the Rome farm did actually maintain and keep through the year, from its products, one hundred head of cattle and sixteen horses. ” The grounds of the alleged error in this portion of the charge, as stated in the appellants’ brief, are: “(1) Because if this is a false representation, and made with intent to defraud, it is not actionable, because as a knowledge of the truth or falsity of the statement could have been easily ascertained by the plaintiff’s agent, this action cannot be maintained; {2) the language used in the charge is not the language of the witness Schumaker, nor the plaintiff, and is therefore suggestive to the jury that they might speculate on the interpretation to be given to the language used by Joshua Mather; and (3) because the expressions, charged to have been made use of by the elder Mather on this subject, are clearly open to a perfectly innocent and honest interpretation.”
As to the first ground, we have already held that the evidence was not such as would have justified the court in holding, as a matter of law, that the plaintiff’s failure to acquire a knowledge of the falsity of such representation was a bar to her recovery.
[419] ÍTor do we think that the second ground of objection can bs sustained. The evidence of the plaintiff tended to show that this representation wau made, and was sufficient to justify the jury in so finding. If we assume that the representations proved were made, then we are clearly of the opinion that the evidence was sufficient to justify the jury in finding that they were not innocently made, but were made with the design to defraud the plaintiff. The representations proved related to the character and quality of the farm Their manifest tendency was to throw the plaintiff off her guard, and lead her to forego aq examination, which she might otherwise have made, or ty consummate the trade without further examination, when, but for them, she would not have done so. Under the evidence in this case, it cannot be held as a matter of law that the falsity of these representations was apparent or known to the plaintiff, and hence it became a question for the jury to determine whether the representations were made; were false; known by the defendants to be false; were made with an intent to deceive the plaintiff; were relied upon by her, and she deceived thereby. Mayer v. Bean, 115 N. Y. 556, 22 N. E. Rep. 261. When this portion of the charge is read with the context, it becomes quite manifest that this exception was not well taken.
On the trial the plaintiff was permitted to prove that her husband and agent informed her as to the representations made by the defendants, and stated to her what they were. This evidence was objected to as not competent against the defendants, and immaterial. The onjection was overruled, and the defendants excepted. The defendants, however, insisted that, if the plaintiff was permitted to testify to any of the statements made by the defendants to Schumaker that were reported to her, they must prove all the reports that were made. The court so held. The witness was then permitted to testify that her husband told her of the representations which she proved that the defendants made, and to give the representations that were communicated to her, which were substantially like those testified to by her husband. The plaintiff was entitled to prove that the representations made by the defendants to her husband and agent were communicated to her, and that she relied upon them in making this trade. It was a part of the transaction, and clearly admissible. We do not think the appellants’ exception to this evidence well taken.
On the cross-examination of the plaintiff’s husband, the defendants proved by him that he wrote three letters, which were highly commendatory of the Rome farm, and which were inconsistent with the testimony given by him as to the quality of that farm. This witness also testified that his wife did not know of his writing the first two letters, but that she knew about his writing the third letter when he wrote it. While the plaintiff was on the stand as a witness, she was asked the following question: “Did you authorize your husband to write and send those letters?” This was objected to as leading and incompetent, the objection was overruled, and the defendants excepted. That question was not answered. The plaintiff was then asked: “Did you know about their being sent before they were sent,—the first two?” This question was not objected to. The witness answered: “ISTo, sir.” She then testified: “I think I knew something about the third, and told him it must be the last. ” She also testified that she did not know of it before it was sent; that she did not know of either of them before they were sent. It is claimed by the appellants that it was error to admit this evidence. An examination of the appeal-book fails to disclose any exception to the evidence given. As there was no exception to the evidence admitted, no question of error is presented for our determination.
The appellants also contend that the judgment should be reversed, and a new trial ordered, on the grounds that the verdict was unsustained by and -against the weight of evidence. We do not think this contention can be sus[420] tained. The evidence, although conflicting, presented a question of fact for the jury. We think its verdict should not be disturbed on that ground.
No question being .raised by the appellants as to the disposition made of the issue as to the plaintiff’s fraud set up in the defendants’ answer, it is unnecessary to examine any of the questions bearing upon it. The appellants’ claim that the damages were excessive cannot be upheld. The evidence was sufficient to justify the jury in finding that the plaintiff had sustained damages to the amount awarded. Having examined all the questions raised by the appellants in their brief, and having found no error which would justify a reversal, it follows that the judgment should be affirmed, with costs. Judgment and order affirmed, with costs. All concur.