The opinion of the Court was delivered by
Sterrett, J.:
While it is not incumbent on the plaintiff in an action of deceit to show affirmatively that he himself is not to blame for the injury complained of, if it appears from the evidence on either side that his own neglect of duty or bad faith toward the defendant has brought about, or materially contributed to bring about, the result of which he complains, he should not be permitted to recover.
It was claimed by defendant below that on August 21, 1876, when he executed the release, he was informed and believed that plaintiff had previously purchased the land described therein, and had accepted a deed therefor from Williams. His own testimony to that effect was distinct and positive, and he is fully corroborated therein by the *56recital in the release, which describes the land with “ being the same which J. C. Williams aforesaid sold and conveyed to Wilson Phillips, .of Mercer county, Pa., by his deed, dated July 26, 1876, said deed being recorded in the recorder’s office in Raleigh, Virginia,” etc. This recital was notice to plaintiff that the release was executed by the defendant on the faith of information he had received, and in the belief, not that the sale was then being negotiated, or dependent in any manner on the release, but that it had been fully consummated and the deed accepted nearly a month before. Under these circumstances, was it not the duty of plaintiff to correct the misapprehension of fact under which defendant had evidently executed the release, rather than to permit him to remain in ignorance of the deception that appears to have been practiced on him ? If he had been informed that the negotiation was still pending, that plaintiff refused to accept the deed and -part with the consideration until the release was procured ; non constat. that he would not have objected on the ground that the release had been obtained by misrepresentation. Knowing, as the plaintiff must have known from the face of the release itself, that it was given under a misapprehension of fact — that it was not executed for the purpose of inducing him to purchase the land — how could he, in the exercise of good faith, remain silent and afterwards claim that it was given by defendant, and accepted by himself, as an inducement to purchase the land and part with the consideration therefor? His silence, under the circumstances, was virtually an affirmation of the misrepresentation under which he had every reason to believe the release was procured. Th e use of the release as an inducement to purchase is by no means an immaterial fact. The plaintiff’s claim is based mainly on the ground that it was given and accepted as such inducement. After reciting the deed of trust as a lien on the land, and averring that it so remained until plaintiff was about to purchase, the declaration further avers that defendant, “ in order that the sale to plaintiff should be made, wrongfully intending to injure plaintiff, executed a written release of said land, and caused the same to be delivered to plaintiff, whereby he was deceived, and on the faith of said release parted with the consideration therefor to said J. S. Williams.”
These are not merely formal averments. They are matters of substance, and constitute the most essential part of plaintiff’s case. Some of them, so far, at least, as defendant is concerned, were not sustained by the evidence. There *57appears to be nothing in the case to support the averment that defendant executed the release “ in order that the sale to plaintiff should be made.” That was, doubtless, the purpose for which Williams procured it and intended to use it, but there is no testimony tending to show that defendant intended it for that purpose. On the contrary, the release itself shows it was executed in the belief that the sale had been consummated several weeks before. With explicit notice of this fact brought home to him, what right had the plaintiff to act on the faith of the release and neglect the duty of making that inquiry which the recital plainly suggested 1 If that inquiry had been made, it, doubtless, would have led to such an understanding of the facts connected with the release as would have avoided the loss that appears to have resulted.
In view of the pleadings and evidence, we think, for reasons above suggested, that- defendant’s first and second points, covered by the third and fourth specifications, should have been affirmed.
The remaining assignments of error are not sustained. The testimony complained of in the first and second specifications of error was not incompetent.
With some modification, defendant’s third point might have been affirmed ; but, as presented, there was Ho error in refusing it. Whether Williams “gave plaintiff full information and concealed nothing,” was a question of fact for the jury. The testimony on that point was conflicting and was rightly submitted to the jury.
Judgment reversed, and a venire facias de novo awarded.