
    George Taylor v. George W. Leith.
    1. The plaintiff sued the defendant to recover damages for fraudulent representations in the sale of lands; also to recover in the same suit on the covenants of warranty for the failure of title of one of the tracts. Afterward, the claim for damages on account of the failure of title was withdrawn from the suit—Held, that such withdrawal did not preclude the defendant from showing the character of the tract as to which the title failed, in connection with the character of the other tracts, as bearing on the question of fraud, and the extent of damages in case the fraud should be established.
    2. In such action it is competent for the defendant to prove that one of the tracts actually sold was by mistake omitted from the deed, and another inserted in its stead; and as the alleged fraud .exists independent of the deed, the latter forms no impediment to inquiring into the real transaction between the parties.
    
      Z. The defendant requested the court to mstruct the jury: “ That to constitute fraud there must have been bad faith on the part of the defendant; that is, the representations by the defendant must have been not only false, but known by the defendant to be false, or such as he had no good reason to believe to be true.”
    This instruction the court refused to give as asked, but gave it with thé following addition: “or did not know to be true”—Held, that the instruction as given was calculated to mislead the jury by giving them to understand that representations which were untrue in fact would give a cause of action, although they may have been founded in mere mistake.
    4. If the representations on which the action is founded were, when made, believed to be true, and the facts of the case were such as to justify the belief, there would be no fraud and there could be no recovery.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Wyandot county.
    
      G. H. Mott, for the motion :
    I claim that the action was for the rescission of the entire contract, so far as respects the Missouri lands, for the alleged fraud; and that a recovery by the plaintiff would entitle him to the amount of the consideration paid; and upon a satisfaction of such judgment by the defendant his title would reinvest by virtue of the deed as tendered and brought into court by the plaintiff; that without an amendment of his petition and withdrawing his deed deposited in court, by leave of the court, the plaintiff was not entitled to a judgment for damages as in an action, in the nature of an action of deceit, founded upon the fraud; as that would be an affirmance of the contract, and give him the lands which he was seeking to relinquish and repudiate for the fraud; that the testimony ruled out was material for the consideration of the jury : because, 1st. The testimony excluded tended to prove the quality and value of a parcel of the land embraced in an entire purchase; it was a part of the res gestee; it tended to. disprove a material averment in plaintiff’s petition;—2d. It was for the jury to find which of the two 40-acre tracts in section 28 was in the minds of the contracting parties at the time of the alleged representations, and to which those representations applied.
    I also claim that the Court of Common Pleas erred in refusing to charge as requested, aud in the charge given.
    As to the question of fraud: 32 Iowa, 367; 10 lb. 423; 45 N. Y. 169; lb. 175; 40 lb. 562; 21 lb. 238; 51 lb. 27; 102 Mass. 221; 10 Allen, 548; 13 Iowa, 1; lb. 327; 2 Day (Conn.), 128 ; 1 Dev. 21; 2 Red. 32; 3 Jones, 222; 63 N. C. 305 ; 15 Ohio, 659; 51 Barb, 116; 53 lb. 425 ; 36 How. Pr. 385; 18 Ga. 404; 26 lb. 366; 9 Ind. 572; 41 N. H. 95; 13 How. 198; 2 Calclw. 132 ; 35 Vt. 577.
    
      John JD. Sears, contra:
    Upon the facts stated in the petition, the plaintiff’s remedy was clearly a recovery of the difference in value between the land bought, as it actually was, and as it would have been had the representations been true, and as to the tracts to which the title failed, a recovery, as damages, of the consideration money and interest. Gory v. Gaynor, 21 Ohio St. 277.
    It is possible, too, that upon the petition alone the court might have decreed a rescission of the contracts; but the facts upon which this claim could have been predicated are fully met by the new matter in the answer. As the reply ■does not deny these facts, the plaintiff certainly could make no further claim to a rescission. Pomeroy’s Remedies, etc., secs. 549 and 32; Glay v. JEdgerton, 19 Ohio St. 549.
    The withdrawal of all claim of every kind on account of the northeast quarter of northeast quarter of section 28 made any testimony about that tract wholly irrelevant, .and the testimony offered by defendant to show its quality and condition was properly excluded.
    The question in regard to the exceptions to the refusal of the court to charge as requested, and to the charge as given, is—Can a vendee who has been induced to buy land by the false statements of the vendor only recover when the vendor has acted in bad faith, by telling what he knew to be. false, or had no reason to believe to be true ?
    On this question the court is referred to Burnett v. Judsoi?, 21 N. Y. 238; Stone v. Drury, 4 Met. 151; Hazzard v. Irwin, 18 Pick. 95; Lobdell v. Baker, 1 Met. 193, 201; Rigdon’s Leading Cases on Torts, 22, 23; Kerr on Fraud, 53, 54, 55, 60, 61, 68, 69; Adams v. The State, 25 Ohio 8t. 584.
   White, J.

As the issues were finally made up, the ease was an action for the recovery of damages for fraud, alleged to have been practiced by Taylor on Leith in the sale of land.

The only errors assigned we deem it material to notice are those alleged to have occurred on the trial.

The lands were situate in Holt county, Missouri, and ■consisted of two tracts of forty acres each, and one of sixty acres; and they are described in the petition as follows: The southwest quarter of the southwest quarter of section 22 ; the northeast quarter of the northeast quarter of section 28; and the -west part of the southwest quarter of section 19, containing sixty acres.

The petition charged that the defendant, Taylor, represented the sixty-acre tract to be dry prairie land of the best quality; and the two forty-acre tracts to be good smooth •timber land, well timbered with a thrifty growth of oak and black walnut trees, suitable for fencing, farming, and sawing timber, and for all other purposes for which timber is needed in connection with a farm; that it was of especial value in connection with the prairie land, to the use of which it was essential; and that it was accessible from the prairie land by a direct road, and only two and a half miles distant.

These representations are averred to have been false, and known by Taylor to have been so at the time they were made.

The petition also alleged want of title in Taylor to the northeast quarter of the northeast quarter of section 28.

The answer denied the making of the alleged representations, and also denied that the land was of the character charged in the petition.

The answer likewise set up that the northeast quarter of the northeast quarter of section 28 was inserted in the deed from the defendant to the plaintiff by mistake; that the forty acres actually sold and intended to be conveyed was the northwest quarter, instead of the northeast quarter of the quarter section. He asked for the correction of the mistake, and tendered a deed for the forty acres intended to be conveyed.

The plaintiff, in reply, denied the mistake.

Afterward, the plaintiff, on leave, withdrew that part of his claim for damages arising out of the failure of title to the forty acres, and the defendant withdrew that part of his answer relating to such failure of title.

On the trial, two exceptions were taken to the ruling of the court in excluding evidence offered by the defendant, Taylor.

1. He offered to prove that at the time of making the contract for the sale of the land in controversy the tract described in the petition as the northeast quarter of the northeast quarter of section 28 was, in fact, good smooth timber land, well timbered with a thrifty growth of oak and black walnut trees, suitable for fencing, farming, and sawing timber, and for all other purposes for which timber is needed in connection with a farm; that it was accessible-from the prairie tract of sixty acres by a section line running over ground upon which a public road was practicable, at a distance of about two and one-half miles; and that the forty-acre tract in section 28 was of greater value than the forty-acre tract in section 22.-

On objection by the plaintiff, this evidence was excluded..

2. The defendant also offered to prove that the northwest quarter of the northeast quarter of section 28 was, in fact, the tract of land sold and intended to be conveyed, instead of the northeast quarter of such quarter section; that all representations as to location, character of surface, timber, and soil of the two forty-acre timber tracts described in the petition were referable to that tract taken in connection with the forty-acre tract in section 22; and that it was better timbered, of better soil, and of greater value, at the time of the sale, than the tract last named.

This evidence was also excluded on objection by the-plaintiff.

¥e think the court erred in excluding the evidence in both instances.

As to the first. the withdrawal of the claim for damages on account of the failure of title to one of the forty-acre tracts did not narrow the range of inquiry for determining whether the alleged fraud was committed; nor for determining the extent of damages, if the fraud should be established.

The deed was made with covenants of warranty, and the want of title was not set up as an element in the alleged fraud, but only as a breach of the covenants.

Viewing the case, therefore, in the aspect claimed by the plaintiff-, namely, that there was no mistake as to the land intended to be conveyed, the evidence excluded was competent, both as tending to disprove the fraud, and as tending, if the fraud should be proved, to diminish the damages.

The evidence to which the second exception relates, tended to prove the case as it was claimed by the defendant, viz: that the forty-acre tract in fact sold in section twenty-eight, and to which the representations referred* was the northwest quarter of the northeast quarter, and that by mistake the tract was described in the deed as the northeast instead of the northwest quarter of the quarter' section. The evidence also tended to show that the character of the forty acres in fact sold, was such, when taken in connection with the other tract of forty acres in section twenty-two, as to rebut the charge of fraud, or lessen the damages resulting from it.

The fraudulent representations constituting the cause of action do not arise out of the deed, or depend upon it. The fraud exists independent of the deed, and arises out of what took place between the parties before the deed was made. ’The deed, therefore, is no impediment to inquiring into the real transaction between the parties in so far as it bears on the question of fraud, or the extent of damages.

The parties haying given evidence tending to prove the issues on their respective parts, the defendant requested the court to instruct the jury as follows : “ That to constitute fraud, there must have been bad faith on the part of the defendant; that is, the representations by the defendant must have been not only false, but knowm by the defendant to be false, or such as he had no good reason to believe to be true.”

. This instruction the court refused to give as asked, but gave it with the following addition : “ or did not know to be true.”

In giving the instruction with the qualification added, we think the court erred. The instruction, as given, was calculated to mislead the jury by giving them to understand that representations which were untrue in fact, would give a cause of action, although they may have been founded in mere mistake.

The representations in question related to the sale of land, and, unlike, representations in the sale of personal ■chattels, there can be no recovery as upon a verbal warranty. Nor do the doctrines sometimes applied by courts ■of equity in granting relief, apply to cases like the present. Wilcox v. Iowa Wesleyan University, 32 Iowa, 367.

The present action is brought to recover damages for fraud or deceit practiced in the sale of land. To constitute a cause of action there must be bad faith. If the representations, when made, were believed to be true, and the facts of the case were such as to justify the belief, there is no fraud or deceit, and there can be no recovery.

Objections are also taken in argument to the general charge. I^ut the exception was not so taken as to entitle the party to have the charge reviewed on mere questions •of law. Adams v. The State, 25 Ohio St. 584.

Leave granted ; judgment of the District Court and that •of the Court of Common Pleas reversed, and cause remanded for a new trial.

Welch, C. J. Rex, G-ilmore, and McIlvaine, JJ., concurred.  