This was an action commenced by the defendant in error, plaintiff below, against the plaintiff in. error, defendant below, to recоver a certain sum as damages alleged to be due the plaintiff on account of false and fraudulent representatiоns made to him by the defendant, concerning the *809 number of acres contained in a certain tract • of land, purchased by the рlaintiff from the defendant. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.
The record, in so far as it is set out in the briefs of counsel, in compliance with rule 25 оf this court (20 Olda. xii,
In the deed executed in pursuance of this part of the contract the land was described as “the northwest quarter of section 19, township 25 north, of range 9 west of I. M. in Oklahoma, containing 160 acres, more or less, according to the government survey thereof.” Thereafter the balance of . the purchase price was paid, and the deed was delivered to the plaintiff. Some time subsequent to that defendant turned the *810 рatent to the land, issued to him by the United States, over to the plaintiff, wherein the land was described as follows: “The northwest quarter of sеction 19 in township ,25 north, of range , 9 west of I. M. in Oklahoma, containing 148.94 acres, according to the official plat of the survey of the said land, returned to the General Land Office by the surveyor general.”
Upon discovering the shortage, which was first disclosed by the patent, plaintiff commenced this 'action. The foregoing facts, which are undisputed, would entitle the plaintiff to recover for breach of contract. But there was also evidence tending to show that the defendant, the only person who had actual knоwledge of the number of acres contained in the tract of land he offered for sale, was guilty of deceit by suppressing this information.
The defendant knew that the plaintiff and the real estate agent were dealing together upon the basis that the tract contained 160 acres, and intentionally had concealed the fact of the shortage from them. It is obvious that the contraсt and the deed from the defendant to the plaintiff, which were prepared by the real estate agent, were both drawn, under the belief by the plaintiff and the real estate agent that the tract contained 160 acres. But, in addition to the silence of the defendant, under circumstances that he should have spoken, it was shown that both the plaintiff and the real estate agent requestеd the defendant to supply them with the patent issued by the United States, in order that the land might be correctly described in the contract and deed, and that the defendant answered in effect that the description contained in the deed is correct, that “I do not know where the patent is,” and that he did not deliver the patent until after the deal was completely closed, whereupоn he immediately produced it, and informed the plaintiff of the shortage. It is impossible to read the evidence -without coming to thе conclusion that the defendant intentionally fostered the impression which he knew the plaintiff and the real estate agent еnter
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tained, concerning the number of acres contained in the tract of land offered for sale. The rule is that if, with intent to deceive, either party to a contract of sale conceals or suppresses a material fact, which he is in good faith bound to disclose, this is evidence of an equivalent to a false representation, because the concealment or suppression is in effect a representation that what is disclosed is the whole truth. The gist of the action is fraudulently producing a false impression upon the mind of the other party; and, if this result is accomplished, it is unimportant whether the means of accomplishing it are words or acts of the defendant, or his concealment or suppression of material facts not equally within the knowledge or reach of the plaintiff. Cooley • on Torts (3d Ed.) vol. 2, p. 910;
Westerman v. Corder,
False representations of a vendor as to the quantity оf a tract of land he offers for sale are not • mere matters of opinion, but are material, and he cannot avoid their consequences merely because the vendee might have ascertained their falsity by a survey of the land or by referenсe to official plats and records.
Stearns v. Kennedy,
There are other assignments of error argued by counsel for plaintiff in error in his brief which quеstion certain rulings of the trial court upon the introduction or rejection of evidence and as to the correctness оf a certain instruction given. Such errors belong to the class which, by section 5680, Comp. Laws Okla. 1909, the court is required to disregard, when they do not affect any of the substantial rights of the adverse party. An examination of the record convinces us that upon the merits оf the case the plaintiff is clearly entitled to recover; and that there was no error or defect in the plead
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ings or proceedings which affected any substantial rights of the defendant.
Mullen v. Thaxton,
The judgment of the court below is therefore affirmed.