
    Anderson et al. v. Burnett.
    Where town lots were represented by an advertisement to be situated at the head of navigation, contrary to the fact; but the vendee was acquainted with the situation of the country, it was held that he could not not set up such false representation as a bar to the recovery of the purchase money.
    The representations of the vendor cannot amount to fraud, if known to be false by the vendee.
    Whether the representations of the vendor amount to &aud or not, is a question for the jury.
    Whether printed representations amount to a warranty, or an opinion merely, is a question for the decision of a jury.
    ERROR from the circuit court of the county of Monroe.
    This was an action of debt upon a bill single executed by the defendant and others to secure the payment of certain lots in the town of Aberdeen, which were purchased by them of the plaintiffs.
    The defence relied on was, that the plaintiffs fraudulently and falsely represented that the property was situated at the head of steamboat navigation on the Tombigby river, and was also above the overflow of the river in times of freshets. To sustain this de-fence, defendants read to the jury a printed advertisement of the proprietors, in which it was stated, amongst.other things, that the town was at the head of steamboat navigation, on the Tombigby river. They also proved that the river was navigable for steamboats as high as twenty or thirty miles above Aberdeen, and that this fact was known to the proprietors, and that boats had run that high some years before the sale, and continued to do so. In answer to this proof on the part of the defendants, the plaintiffs proved that defendant, Bolling C. Burnett, had been a citizen residing in Monroe county for two years before the sale. There was no proof of any representation in regard to the overflowing of the river.
    The counsel for the plaintiffs requested the court to instruct the jury that if they should believe from the testimony that the defendant purchased the lots with a knowledge of all the facts and circumstances with regard to the locality of the town of Aberdeen and the navigation of the river, they must find for the plaintiffs. And also, “ that the representations contained in the printed publication of the proprietors anterior to the sale as to the locality of the town, &c. would not amount to a fraud so as to vacate the contract.” The court refused to give these instructions, but charged the jury that if they believed from the testimony that the plaintiffs made representations in relation to the overflowing of the town, and its being situated at the héad of steamboat navigation, which induced the defendant to purchase, and which were untrue, whether they knew such representations to be false or not, they were bound by them and could not recover. Verdict for defendant.
    G. S. Yerger for plaintiffs in error.
    1. The refusal of the court to give the instructions asked, was manifest error. The only fact or representation which can upon any pretence be considered as unfounded, is, that they represented as head of steamboat navigation, when 'for several years before it was navigable twenty or thirty miles further up.
    If the defendant knew this, he could not have been misled. That he did know, the jury in all human probability would have found, because he was a resident citizen two years before the sale, and facts of this kind are of so open and notorious a character, that persons residing at or near are obliged to know it. At all events, the jury would have been warranted in inferring that he knew it, and the court ought to have left it to them. But he refused to do so, and his refusal brings up this question: “ if a misrepresentation is made, which is known to both parties, it is fraud.” The law is clear on this point. 1 Story’s Equity, 212. Crabtree v. Cheatham, 2 Yerger’s Rep. 138.
    
      2. But it is not shown that the statement is false. It is shown, boats “ had ascended and still continue to run to Cotton-gin Port.” This does not prove Aberdeen was not at the head of steamboat navigation, which mearis a permanent navigation, and to which boats in ordinary stages of the river may always ascend. The fact that boats may go higher up in high tides, &c. does not disprove it.
    
      3. It was not such a representation as amounted to a fraud. 1 Story, 206, 207, note and page 211. 2 Kent, 484.
    Cocke for defendants.
   Opinion of the court by

Mr. Justice Tkottee.

The errors mainly relied on, are assigned on the refusal of the court to give the instructions asked by the plaintiffs. These instructions involve two questions: 1st. Whether a warranty or representation which is known to both parties to be untrue, can form the foundation of an action. 2d. And whether the representations contained in the printed publication read in evidence to the jury amount to a warranty, or a mere expression of opinion or simple affirmation.

1st. The true rule appears to be, that "the seller is liable to an action of deceit if he fraudulently misrepresent the quality or condition of the thing sold in some particulars of which the buyer has not equal means of knowledge with himself.” 2 Kent, 382. But it is believed to be a well settled principle of the law, that if the defect complained of was open equally to the observation of both parties, it is not embraced by a warranty even against all defects, nor any representation of the vendor. It was upon this ground held, that if a horse is warranted sound, and yet has some visible, palpable defect, which can readily be discovered by a prudent vigilance and attention, the buyer cannot ground an action upon the warranty on account of such defect. So if a house be sold and is warranted to be in a state of repair, the vendee cannot complain if the house have no roof. And in accordance with these principles, it has been determined that if a party purchase an estate concerning which he knew false representations had been made by the vendor, he cannot take advantage of these either at law or in equity. Sugden’s Law of Vendors, p. 283. And in the case of Dyer v. Hargrave, 10 Vez. Jr. 505, when an estate was described as lying, within a ring fence, but which did not answer that description, the , chancellor determined that the purchaser was precluded from insisting upon that as an objection to complete the contract, as he had lived in the neighborhood of the estate all his life and knew the situation of it. The variance of the actual condition of the estate, from that described, was the object of sense, and the purchaser must have known whether the farm did lie in a ring fence or not. These principles fully authorized the first instruction which the court was asked to give the jury, that if they believed the defendant had a full knowledge of the condition or situation of the town in regard to the subject of the representation that he could not complain if it was false.” Surely a man cannot complain of a false representation, unless it has been the means of deceiving him. It was, therefore, as we conceive, error in the court to refuse the charge.

2. The second question presented for our consideration may be considered as disposed of in the observations already made. The representations contained in the printed publication could not of course amount to a fraud if they were known to be false by the defendant. Taken however disconnected from the other point in the instructions, we are inclined to the opinion that the court properly refused the instruction secondly asked for. It was too general, and was requiring of the court to assume the province in part of the jury. The question whether the representations of the plaintiffs amounted to a fraud was one which belonged to the jury, whose province it was to respond to it in view of all the circumstances of the case.

If it was the design of the counsel in urging this instruction to obtain the opinion of the court whether the representations referred to amounted to a warranty or an opinion merely, it was still equally proper for the court to refuse it. For this is likewise a question for the jury, who are required to decide it in reference to the intention of the vendor. Kinley v. Fitzpatrick, 4 Howard Rep. 61. 19 J. R. 290. 8 Cowan, 25. For the error, however, in refusing the first instruction, the judgment must be reversed, and a venire de novo awarded.  