The opinion of the court was delivered by
Peck, J.
The referee finds that there was no warranty of the horse ; the plaintiff’s right to recover, therefore, rests solely on the ground of fraud in the sale. It appears from the report that the referee had great difficulty in finding what representations were made by the defendants, and the same difficulty in determining what inferences should be drawn, and what conclusions should be drawn from what representations he did find proved ; and on looking at the whole report it seems that these doubts were not entirely without foundation. There is much in the report that tends to negate the idea of such affirmative false representations on the part of the defendants as to render them liable. But the court must take the facts as found by the referee, including such inferences of fact as the referee has legitimately drawn from the principal facts which he finds proved. *581The question for the court is whether these facts and inferences constitute such fraud as creates a legal liability. The defendants purchased the horse of Mann in the fall of 1859, and sold him to the plaintiff in the spring of 1860. The referee does not find that the defendants represented the horse as sound, that is, he does not find any such direct representation was made; but, on the contrary, he finds that they informed him that the horse had been lame by spells, since they purchased him, and that he was lame when Mann owned' him, and that they did not know what caused the lameness. This, according to the finding of the referee, was substantially true. It appears that the defendants purchased the horse at the price of the horse if sound, supposing him to be sound, and that Mann at that time gave them to understand that the lameness was temporary, and that there was no real or permanent unsoundness. This shows substantially that the defendants’ statement to the plaintiff that they bought the horse for a sound horse, and that Mann said he was sound, was true. But it appears that in the conversation about the lameness .of the horse, one of the defendants told the plaintiff that he turned the horse into the yard to play, and he jumped into the snow and wrenched his shoulder, and that that statement was untrue. It is not found that the defendants knew it was untrue, unless it may be inferred. This, of itself, is but slight evidence of fraud, especially as Benson, the other defendant, had just before told the plaintiff that the horse had been lame by spells since they owned him, and that he could not tell the cause of the lameness, or where it was ; that he sometimes thought it .was in his shoulder, and sometimes in his foot. It is also stated in the report that the defendants stated to the plaintiff that Mann told them that the horse slipped on the ice in the yard, when two years old, and was lame a while, and never lame since. The referee finds that, “ the statement about slipping on the ice was untrue, no such statement having been made by Mann.” But it •appears that Mann did tell them “ that- the horse, as he supposed, slipped and fell in the pasture, and that he thought that might have ■caused his lameness.” It is urged by the defendants’ counsel, and not without reason, that the particulars in which the referee finds this, statement about slipping to be untrue, is not so far material as to constitute in law a fraud, as slipping on the ice in the yard would be. *582quite as likely to produce permanent lameness, as slipping in the pasture. In the absence of any finding that the defendants knew this statement to be untrue, it might fairly be attributable to mistakes as the defendants apparently could have had no motive to misrepresent in that particular.
If the defendants’ liability rested solely on affirmative misrepresentations, there would be difficulty in holding them liable. But the referee finds further, that the horse was in fact foundered, and lame in his feet in consequence, at the time the plaintiff purchased him, and that such was his condition at the time the defendants obtained him from Mann, and that that was the real cause of his lameness. The referee further finds that “the defendants had, at the time of the transfer of the horse to the plaintiff, and for sometime previous thereto, become satisfied that he was unsound and the lameness permanent,” although he can not find that the defendants were fully satisfied of the cause of the lameness, or of what the unsoundness consisted. The referee also finds that, “ notwithstanding there was conversation, as before stated, about the lameness of the horse, the defendants not only stated the causes of such lameness in the particulars before named untruly, but that they purposely and intentionally conveyed the idea to the plaintiff that there was no permanent lameness or unsoundness of the horse, and that the plaintiff' purchased him believing him to be sound, and that he would not have done so at the price he paid for him, had he believed him unsound.” As the plaintiff inquired in relation to the soundness of the horse, and the defendants undertook to tell, they were bound to disclose all they knew on the subject, and the plaintiff had a right to act upon the supposition that they had done so. The defendants, while they owned the horse, having discovered by observation or otherwise that the horse was permanently unsound, had no right intentionally to conceal it, but were bound to disclose fully the whole truth. They had no- right to impart a portion of their knowledge and withhold the residue for the purpose of deceiving the plaintiff. The defendants are liable and mainly upon the ground of fraudulent concealment. Under the circumstances of the case the maxim clearly applies, that the suppression of the truth is equivalent to the assertion of a falsehood.
It is insisted on the part of the defence that the referee erred in *583admitting certain evidence which the report shows was objected to by ■■he defendants. If the defendants wished to avail themselves of this objection, they should have filed exceptions to the report based on this alleged error, and interposed it by way of objection to the acceptance of the report, or by motion to set aside or recommit the report. It does not even-appear that any question was raised or decided in the county court in • relation to the admission ■ of' this testimony, in any form. The exceptions to the decision of the county court do not indicate that any other question was decided by that court than the question arising upon the facts found by the referee. It would be an inconvenient practice to allow questions of the admission or rejection of evidence by an auditor or referee, to be raised in this court, which were not noticed in the county court, when the effect of the error, at most, would only lead to a new trial. It is questionable whether the evidence was properly admitted, but it is not necessary to decide this question as it is not regularly before us. If this court could even relieve a party from the consequences of the wrongful admission or rejection of evidence by a referee, in a case situated as this is, it would be only by an appeal to the discretion of the court, and then only where the evidence was of such a decisive character that the court could see that there was danger that injustice had been done. In this case the evidence in question is so. slight that it can not be supposed to have had much if any influence on the mind of the referee.
Judgment affirmed.