
    ROBERT H. GRIFFITH vs. DAVID S. EBY.
    
      If a.i-endor uses means likely to impose on a person of ordinary prudence and circumspection, by throwing the purchaser off his guard on a point where he might reasonably place confidence in the representation made to him, and damages results to the purchaser, it is iraud, The inquiry as to the existence of such facts should be submitted to a jury.
    APPEAL FROM THE HANNIBAL COURT OF COMMON PLEAS.
    Glover & Campbell, and Thomas Sunderland, for appellant.
    The judgment should be reversed—
    1st, Because the evidence shows no intentional and deliberative fraud practiced by the assignee of the note sued on, upon the appellant. First, by filing in the face of legal penalties a fraudulent plat; and secondly, by exhibiting that plat, and averring the ownership of ail the lands covered by it, save where the reservations were marked upon it; and thirdly, b.y misrepresenting the location of the ice house, a material inducement to the purchase.
    2d. That the appellant had the right to reiy upon statements so solemnly made and so frequently repeated, both by record and verbal declarations, and held the party legally responsible therefor, if ascertained to be false. If the appellant is to be held remidiless in this case) because he trusted the declarations of the appellee, and did not measure and survey the whole ground, it is believed that fraud will generally go unpunished. Had the fraud been manifest to the observation of the purchaser, or fallen within the grasp of any of his senses as he passed over the ground? Was it evident that he could have discovered the falsity of his representations from any point at which he examined the tract, the court might weli have fold the jury to find against him. Rad evidence of any sort been present to his mind, calculated to awaken suspicion of the verity of the representations? A ease of laches might have been made against him ; or had the opportunity of examination been immediate, as incase of goods sold in the absolute presence of the vendor, and not looked at by him, he might have been charged with wilful neglect. But this case is wholly different; none of these things occurring, the purchaser was required to doubt the truth of representations apparently fair, without any reason whatever, and without having any means of convenient and ready examination, to set about a laborious and tedious <Érvey of Stout’s addition to the town of Hannibal, which could not have been effected under several hours, perhaps half a day. It is believed that no case has been adjudicated requiring a party, under such circumstances, to question the good faith of another, or to suffer a serious loss Cor not resorting to care and diligence which nothing in the case suggested.
    3d. The testimony ip the cause does not convict the appellant of neglect of ordinary care and diligence, if in fact such was proper language in instructions to the jury. No man would have acted with more discretion or carefulness, conceding to the vendor ordinary sincerity. Where there is nothing to create suspicion, there is no imputing laches for reposing confidence.
    4th. The defence was a bar to the action, if true; and the damages sustained by the appellant far exceed the debt.
    McDonald for appellee.
    1st. The plat marked A, and the deed from Stout to Griffith, clearly show that Lahenan was wholly mistaken in his testimony, in relation to the conversation which took place in his office at the time he drew the deed. The witness says he was informed by the parties, that they had traded with reference to said plat as the reservations appeared on it. Now there is not a single reservation upon it, as will appear by looking at it.
    Again; The deed from Stout to Griffith expressly reserves Collins’ 23 acres by the meets and bounds contained in Collins’ deed from Wiley for the same, and yet Collins’ 23 acres are not laid down or marked upon said plat. Mr. Lahenan’s evidence upon this point, and it is the first one for the plaintiff in error to establish, is entirely destroyed by the plat marked A, and Stout’s deed to Griffith, and which Was drawn by witness, again Wiley’s reservation of 5 acres is not marked on the plat.
    2J. The evidence of Holliday shows that Griffith went upon the land, and accompanied the witness in surveying the same, that Griffith knew where the N. W. corner of Collins’23 acres was, and that from thence he run the westerly line of said 23 acres along Collins’ fence to point C., it being the S. W, corner of said tract as laid down on plat B.; from thence to point B. From all this it is reasonable to believe that Griffith did not purchase according to plat A.j nor did he confide in Stout's statements (if he made any) in relation to the location of any of the reservation contained in said deed.
    Again: Holliday testified that after making said survey he calculated the quantity of land in said area, and deducted out the reservations named by the parties, and ascertained to their satisfaction the land Stout claimed in the tract. He also states that Collins’ 23 acres was under fence. Let it be remembered that the calculation thus made upon the ground, in the presence of Stout and Griffith, and the field notes of said survey were handed to Lahenan to draw a deed by from Stout to Griffith. Can it be doubted that the bargain was then made, and made in accordance with said calculation and survey. Was there then any misrepresentation here, or fraudulent concealment on the part of Stout ? Did Griffith confide for one single moment in any thing that Stout had ever said in relation to the boundaries of said reservation? Certainly not. He was upon the ground, saw the corners by the deed he received from Stout; he was referred to Collins’ deed from Wiley for the number of chains and links, courses and distances, and acres of Collins’ tract.
    Griffith’s conduct can only be accounted for in one of two ways. First: He must either have been looking forward to the distant day when this note should become due, end then set up a defence to the note for delay, and perhaps indulging the faint hope that the abilility of his distinguished counsel, under the charge of fraud, would shield him from its payment. Surely it appears to me that Griffith must have had some such plan in his mind, or
    Second. His careless indiiterence and total want of attention to those facts and means of information that were as much within his reach as they were to Stout.
    I cannot believe that tlie law will aid him in a cunning and crafty shine on the one hand, or encourage his careless indiiterence to the ordinary means of information within his reach on the other. Story’s equity, p. 217, 218; 2 Kents Com. p. 484j Moore vs. Turbeville, 2 Vol. B. 602.
    3d. The question of fraud in this case, is purely one of fact, and was submitted to a jujy whose province it was to pass upon that questian.
   Judge Birch

delivered the opinion of the court.

Eby, assignee of Stout, sued Griffith on a note for $379 28, being the last payment on a contract for the purchase of a quarter section of land, upon which was laid out an addition to the town of Hannibal, from which contract and sale, however, certain lots and parcels of land previously sold and disposed of were reserved. It was in evidence that during the negotiation between the parties, the vendor (Stout) represented that he owned all the town tract except the portions designated in the plat j whereas a subsequent survey demonstrated thefa'Ct to be that one of the reservations,'supposed to be exclusively'within the country portion of the tract, and not marked on the town plat, cut into it 2 23-100 of an acre. It appears, however, that the parties were upon the ground together; that the Reservation alluded to Was enclosed, and its locality as well as its area thus known to the purchaser. He did not, therefore, bargain for any land which he did not get, and with the localities of which his senses were not satisfied.

As to the óonílict of the line'of thé reservation with the outer block of the addition to the town, whether the representation of the vendor was made in mistake, from a miscalculation of the extensions of the different surveys, both of which were before the parties during the negotiations i or, if not, whether the representation to the effect that they did not conflict, was so falsely and fraudulently made as to render the vendor liable as for a deceit, should have been left to the jury under proper instructions from the court. The rule is, that such means must have been used by the vendor as were likely to impose on a person of ordinary prudence and circumspection, by throwing him off his guard on a point where he might reasonably place confidence in the representation made to him, and which resulted to his damage. No such instructions having been asked or given, the one somewhat analagous to it which was given being susceptible of a construction which might imply the disregard of legal fraud when actually found to exist. The judgment of the court of common pleas is reversed and the cause -remanded-.  