
    Levi Wheelden versus Abram Lowell.
    "When trespass will not lie against one for an entry upon the lands of another.
    
      As where, by the fraudulent representation of a purchaser, a contract for the sale of a horse has been made, and the horse delivered, the vendor, having rescinded the contract, may peaceably enter into the premises of the fraudulent vendee, if not forbidden, and take his property.
    The question, whether an actual tender is dispensed with, is for the jury, where one party, for the fraud of the other, has rescinded a contract, and is willing and ready to return what he has received, but is prevented by the declarations of the other party, that he will not receive it.
    In what cases a fraudulent intent will be inferred from the declarations of a party to a contract.
    This was an action of trespass guare clausum, for breaking and entering the plaintiff’s close and barn, and taking and carrying away Ms horse. Pleadings, general issue, and brief statement of license to enter, or right to enter to reclaim property by plaintiff wrongfully obtained and carried upon his, plaintiff’s land.
    It was in evidence, that in th<? month of March, 1861, plaintiff’s son, acting as his agent, and defendant, made a trade, in which the plaintiff let defendant have a note against Gregory Lambert, dated Aug. 13, 1860, for $105,68, payable to Wm. D. Swazey, or order, by him indorsed, not holdert, for which the defendant let plaintiff have the horse in dispute, and five dollars.
    Defendant contended that the contract was procured by the false and fraudulent statements and representations of plaintiff’s agent. This was denied by plaintiff.
    The Court instructed the jury, that the gist, essence, foundation of the action, is the breaking and entering; that all else is mere aggravation, as breaking door,' and taking and carrying away the horse. Therefore, if the action for the breaking and entering is not sustained, the question as to the sale of the horse, and whether the trade was rightly rescinded, or not, is of no consequence. On the other hand, if it is sustained, then the plaintiff is entitled to at least nominal damages for the breaking and entering.
    Whether he is entitled tó recover anything in addition, for taking and carrying away the horse, depends upon the question whether the contract for the sale of the horse was procured by the fraudulent representations of plaintiff’s agent.
    The main question of damages depends upon the title to the horse. ’ It is not denied that the contract was made and fully perfected. The defendant sold and delivered his horse to plaintiff, and took therefor the note, he, paying plaintiff five dollars, and plaintiff took the horse and earned him home and put him in his barn. Defendant says he had a right to rescind the contract, and take back his horse, as he did; because, he says, the contract was procured and entered into, on the basis, or in consequence of the false and fraudulent statements and representations of the plaintiff, or his agent, at the time of the trade.
    Admitting that the trade was made and perfected, the title of the horse was in plaintiff, until the trade was legally rescinded.
    If a, party in making -a trade, makes statements of matters of fact of essential importance, as being true, and they are untrue, and he knows them to be untrue, and the other party relies upon such statements, and they constitute essential inducements and grounds in the mind of such party in making the contract, it is fraudulent. (No question "was made, that if fraudulent, the defendant was damaged.) It would be the same if a party makes a statement as an absolute fact, and not as of opinion, and he does not know whether the statement is true or not, the other elements being also proved.
    You are to determine from the evidence what statements and representations were made.
    If plaintiff’s agent made no statement as to the goodness of the note, the mere fact that the note was not good would not make a case of fraud.
    You are to inquire whether the statements made, if any, by plaintiff’s agent, were essentially false, or not; this you are to determine from the evidence. If his statements were not true, did he know them to be false, or did he make statements as absolute facts, not knowing whether true or false. If he made statements that are not true, and he knew them to be false, or if he made statements as absolute facts, he not knowing them to be true or false, they are fraudulent. If the statements were false, did defendant rely upon them; this is for you to determine.
    If all these points are found against the plaintiff, and on principles I have stated; if then the contract was obtained by such false and fraudulent representations, so relied upon by defendant, then the defendant had the right to rescind the trade and take back his horse, as he did.
    But, in such case, the contract is not in tact rescinded, until the party defrauded returns or tenders or offers to return whatever of any value he may have received. Where it is the note of the party committing the fraud, it would be in season to make the tender at the trial; but when it is the note of a third party, if of any value, it must be returned or offered back before he can retake the property he let go for it, after the sale has been once perfected.
    You will inquire whether the defendant tendered back or offered to return the note before he entered upon the plaintiff’s premises, or into his barn.
    
      The time when the defendant made the tendel* may become important in relation to the breaking, and entering; but if it was made after entry, and at any time before leaving the premises, when the defendant took the horse away, it would be sufficient, so far as rescinding the bargain, and the defendant would have the right thereafter, so far as the point of rescinding, to repossess himself of the horse, after such tender or offer to return.
    As to breaking and entering; — if the plaintiff owned, or was in the possession or occupation of the premises where the horse was, then you will inquire if the defendant did or not enter on those premises. Any entry, unjustifiable or without license, is a trespass, and the law implies some damages, although no distinct damages beyond such entry is proved.
    Is there any doubt that the defendant entered upon the plaintiff’s premises ? If not, was he justified, or had he a license ?
    If, before he entered upon the plaintiff’s premises, he had made a tender or offer of the note back to the plaintiff, and he had a right to rescind, on grounds stated before, the defendant would have a right peaceably to enter the stable of the plaintiff, and take away his horse,, he doi'ng no more damage than was absolutely necessary; but, if he had not made the tender, or offer, before he entered the stable, then, on this ground, he would not have the right to enter.
    But it is insisted that, if he had no legal right to enter without license,- he had that license.
    A man may give license by his acts or words. It may be implied' from his acts or his words, or both.
    But the mere fact that a man sees another entering upon his premises, and does not in words forbid him before he enters, will not of itself give license to enter. Licenses may sometimes, perhaps, be inferred from prior relations and acts of parties; but what evidence is there here of consent. At most was there anything more than not forbidding.
    You will determine, then, whether from the prior acts there had been a tender or offer back of the note, before the breaking and entering, or whether there was any license.
    If the note was tendered or offered back before the breaking and entering, or if the defendant had a license to enter, then he had a right to enter and take away his horse, other points of defence being established.
    By request of the defendant’s counsel, the Court also gave the following instruction : —
    "If you find that at any time before an entry on the plaintiff’s lañd by the defendant, the defendant had offered to deliver back the note to the plaintiff, or to his son, his agent, from whom he received it, being ready and willing to deliver it, and such actual delivery or more formal tender was prevented by the plaintiff, or his agent, declaring that he would not receive it, it would constitute a legal tender, if at the time, the defendant or his son had the note.at hand.”
    The verdict was against the plaintiff, who filed exceptions to the instructions of the Court to the jury.
    
      A. L. Simpson, for the plaintiff, argued in support of the exceptions.
    
      J. A. Peters, for the defendant, contra.
    
   The opinion of the Court was drawn up by

Appleton, J.

This is an action of trespass quare clausum.

The defendant justifies his entry. His defence is, that having been defrauded, in the exchange of his horse for the note of one Lambert, by the false and fraudulent misrepresentations of the plaintiff’s agent, he had the right to rescind the contract thus made — that he exercised that right by tendering to the plaintiff the note received and demanding back his horse — that the plaintiff declining to give up the same, peaceably and without being forbidden, he entered the premises in question and took therefrom his own horse of which the plaintiff had acquired possession only by the fraud of his agent.

(1.) Every entiy upon the land of another is not a trespass. It is well settled that the owner may enter upon another’s land to identify and retake things stolen. So, when they are on the land of the plaintiff by his consent or contract. Nettleton v. Sikes, 8 Met., 34. "All the old authorities say,” remarks Mr. Baron Parke, in Patrick v. Colerick, 3 Mees. & Wels., 483, "that when a party places the goods of another upon his own close, he gives to the owner of them an implied license to enter for the purpose of recaption. There are many authorities to that effect in Yiner’s Abridgement. Thus, in title, Trespass, (a), it is said, " if a man takes my goods and carries them into his own land, I may justify my entering to take my goods again; for they came there by his own act. So, if A wrongfully place goods in B’s building, B may lawfully go upon a close adjoining the building for the purpose of removing and depositing the goods thereupon for A’s use.” Pea v. Sheward, 2 Mees. & Weis., 426. Aman is never a trespasser in peaceably obtaining possession of his own property. Spencer v. McGowan, 13 Wend., 257. "If J. S. has driven the beast of J. N. into the close of J. S., or if it had been driven thereinto by a stranger and J. N. go thereinto to take it away, the action does not lie, because J. S. was the first wrongdoer.” Bacon’s Abr., Trespass E. So the owner may enter where it is the fault of the owner of the goods, and the owner of the land — as when the cattle of the defendant escaped through a defective partition fence, maintainable jointly by both parties. 1 Dane’s Abr. c. 134, § 13.

In the present case, assuming the facts as found by the jury under the instructions given, the horse was on the plaintiff’s land, not merely by his fault, but worse, by his falsehood and fraud. If the defendant might lawfully take his horse, if it had been on the plaintiff’s land by his permission, or by his fault, much more might he do it, if there, by and in consequence of his wrongdoing. If the right of rescission existed, the moment it was legally exercised, the plaintiff ceased to have any title to the horse, as between him and the defendant, and the latter might peaceably enter, not being forbidden, and take his own.

(2.) The production of money as a tender is dispensed with, if the party is ready and willing to pay the sum, and is about producing it, but is prevented by the creditor declaring that he will not receive it. 2 Greenl. Ev., § 603. The question, whether an actual tender is dispensed with, is for the jury, and we must regard them as having found such to be the case. Whether the tender was of money or of a note of hand, can make no difference as to the rules which must govern.

(3.) In Stone v. Denny, 4 Met., 151, Mr. Justice Dewey says, "that to charge a party in damages for a false representation, not amounting to a warranty, it must appear that it was made with a fraudulent intent or was a wilful falsehood.” "Such fraud will be inferred, when the party makes a representation which he knows to be false, or as to which he has no information and no grounds for expressing his belief.” "So, if he positively affirms a fact as of his own knowledge, and his affirmation is false, his representation is deemed fraudulent.” It was there held the action could be maintained "when the false representation had been .intentional on the part of the vendor, or, what would be equally fraudulent in law, knowing that he was affirming as to the existence of a fact about which he was in entire igmoranee.” In Hammatt v. Emerson, 27 Maine, 308, Shepley, J., cites the case of Stone v. Denny with approbation, and says, — "when one has made a representation positively, or professing to speak as of his own knowledge, without having any knowledge on the subject, the intentional falsehood is disclosed, and the intention to deceive is also inferred.” The instructions of the presiding Judge are in accordance with these views. ' Exceptions overruled.

Tenney, C. J., Cutting, Davis and Kent, JJ., concurred.  