The opinion of the court was delivered by
ROSS, Ch. J.
The plaintiff purchased a horse of the defendant. He seeks to recover damages growing out of the purchase, on two grounds : First, that the defendant warranted the horse to be sound and kind, and secondly, that he fraudulently *574represented the horse to be sound and kind. He alleges that the horse was neither sound nor kind. The plaintiff- excepted to the charge of the court, that “ in order to entitle the plaintiff to recover on the ground of deceit the plaintiff must make it appear that .the representations made by the defendant to him were false, and that the defendant knew them to be false.” It is conceded that as applied to the facts of most cases this is an accurate and sufficient statement of the law governing this subject. The plaintiff’s counsel made no requests to the court to charge, but one of his counsel argued the case to the jury upon the theory that if the defendant made the claimed statements about the 'horse, as of his own knowledge, and they turned out to be false in fact, the plaintiff was entitled to recover, even if the defendant did not know but that his statements were true. The charge of the court was full and specific on both features of the case, and upon the count declaring upon a warranty, fully adopted this theory of the plaintiff’s counsel. The plaintiff now contends that it was error that the court did not also adopt and apply this theory to the count in deceit. The court charged the jury upon the count in warranty that if the defendant made the claimed representations or statements in regard to the characteristics and qualities of the horse as facts, and not as opinion, under such circumstances that the' plaintiff had the right to, and did rely upon them as statements of facts, it was a warranty that the horse had such qualities and characteristics, and he was bound to make his statements good, if false, even if he believed his statements true, and did not know of their falsity. The jury returned a verdict for the defendant. They must, therefore, have found that the plaintiff did not make the claimed statements and' representations, as embodying facts, or that if he did make them as such, they were true. Hence, the plaintiff was given the full force and benefit of his theory upon one branch of the case, and the jury have found upon a. careful, full and explicit charge, that his proof did not sustain his theory. Conned*575ing that he had the right to a like charge in the count for deceit, it is manifest that he. suffered no damage by the failure of the court to repeat it, on this count.
The plaintiff, to'sustain the contention that he had the right to have the jury thus instructed on the count in deceit, relies upon Twitchell v. Bridge, 42 Vt. 68 ; Cabot v. Christie, 42 Vt. 121; and Rowell v. Chase, 61 N. H. 135. As said by Judge Peck, in Twitchell v. Bridge: “ The affirmation of what one does not know, or believe to be true, intentionally made to induce another to enter into a contract, if it turns out to be false, is in law as un. justifiable as the affirmation of what he knoAvs to be false.” Or by Judge Steele, in Cabot v. Cristie: “ A party may be guilty of fraud by stating his belief as knowledge.” * * * “ A representation of a fact, as of the party's own knowledge, if it proves false, is, unless explained, inferred to be wilfull/y false, and made with intent to deceive, at least in respect to the knowledge which is professed.” * * * “ A party who is aware that he has only an opinion how a fact is, and represents that opi/nion as knowledge, does not believe his representation to be true; ” or by Carpenter, J., in Rowell v. Chase: “The fraud consists in affirming actual knowledge of that which is capable of being known, but is, in fact, not known, with an intent to deceive. It is substantially the affirmation of a fact either known to be false or not known to be true, with fraudulent intent.” Prom these varying statements it is seen, that the fraud in this class of cases, consists in passing the party’s opinion, and which he knows is only an opinion, upon the other party for actual knowledge. In such a case the party knows that his representation is false, in that, it is not of his knowledge; and the ease falls within the statement of the law made by the court beloAv. If, however, there had been evidence in the case fairly tending to show that the defendant had no knowledge in regard to the claimed qualities and characteristics of the horse, it might have been the duty of the court to have more fully explained this vieAV of the law to the jury. But the exceptions shoAV *576that the defendant had owned and used the horse more or less, for about six months, and whatever he did tell the plaintiff in regard to the qualities and characteristics of the horse should be assumed to have been from actual knowledge rather than from mere opinion. The facts, so far as disclosed, did not call upon the court to charge more fully upon this branch of the case, when it had fully met the theory advanced by the plaintiff’s- counsel, in argument to the jury upon the other branch of the case, to which it applied with more force. *
Judgment affirmed.