Mr. Justice Trunkey
delivered the opinion of the court, May 22d 1882.
The plaintiff avers that he was induced to purchase the lease, good will and fixtures of a stable, by false and fraudulent representations by the defendant. His action is upon an alleged tort; not upon a contract. To support it, he must show that the representation was untrue; was known by the defendant to be untrue; was calculated to induce the plaintiff to act; and he, believing it, was induced to act accordingly. The representation must have been both false and fraudulent. A positive statement of a falsehood, or suppression of material facts which the plaintiff ought to have known, would constitute the falsity. As one of the questions relates to the defendant’s good faith, if the jury believed that he honestly believed what he stated was true, the action Mould fail; for in such case the representation was not fraudulent. And if the plaintiff knew the truth of the matter, he was not induced to purchase by the false rej>resentation.
In case for deceit, it is somewhat material that its requisites be established, and if any essential point be wanting, the plaintiff ought not to recover. Upon judgment in such action against the defendant, he is not entitled to the benefit of the statutes exempting property from execution for debt, and if he has no property, he may be arrested and imprisoned. That the defendant is indebted to the plaintiff upon contract, should not be used as a malce-weight against him in a suit for his tort.
The evidence tended to show, and the jury must have found, that the defendant had made a prior sale of part of the property to Ranalls, who was in possession at the time the plaintiff purchased. Rut there was also evidence tending to show that the sale to Ranalls was conditioned upon his giving security, which he failed to do. If the plaintiff believed that because of Ranalls’ failure to perform the condition, the contract with him had ended, he was not guilty of deceit, though he might be answerable for breach of contract, if he failed to give possession to the plaintiff. The court affirmed the defendant’s third point, “If plaintiff knew of the claim of ownership made by Ranalls to the stable before he purchased "from .defendant, then under the pleadings in the case, the plaintiff cannot recover.” We are not persuaded that the words added to its affirmance, “ if you find that he knowingly bought it,” did any injury, and the fourth assignment of error is not sustained.
The fifth and sixth assignments embrace the defendants fifth point and the answer thereto: “ That even if the defendant promised to return the purchase money after the sale to the plaintiff, and lie had been put in possession, under the pleadings, the plaintiff cannot recover in this form of action.” Answer. “ This point is affirmed, but if the plaintiff gave up possession on the promise of Cox to pay the money back, that is a consideration. Plaintiff cannot recover, in this form, for that contract, but it is evidence that he, defendant, thought he was wrong, and that he made a valid contract to pay it back.” We are of opinion that the point should have been affirmed withouttaking the pith out of it. The answer should be taken as a whole, for the court was entirely right in recalling the jury to give them any instruction which, inadvertently, had been omitted. Here, the only inquiry is whether the instruction was right. If the plaintiff’s case depended on a promise to refund the money, his action was wrong. The court charged that there was not a valid sale of the lease to Ranalls, and that the defendant was seized of the possession of the stable as against Ranalls. Affirmance of the fourth and sixth points laid the ground-work for the fifth. It is difficult to see how a contract, made after sale and delivery of possession, could sustain an action, the gist of which was a false and fraudulent representation by the defendant to the plaintiff’s injury. There is evidence that after the plaintiff was in possession of the stable, and while Kanalls was scrambling for it, that the defendant promised to repay the money and the plaintiff gave up possession to Hanalls. Evidently, this is the contract and giving up of possession to which, the court referred in the answer. The remark respecting.it must have led the jury far from the gist of the case on trial. Nor was the mistake corrected by subsequently telling them that the “ plaintiff cannot recover, in this form, for that contract, but it was evidence that he, defendant, thought he was wrong, and that he had made a valid contract to pay it back.” Here, again, the contract is given prominence, and with the context, was wrell calculated to impress the jury that it told strongly against the defendant. Possibly, they might have considered it as corroborative evidence, but they had no right to infer from such contract that the defendant had perpetrated a fraud in the sale of the property. Yet they were told it was evidence that he thought he was wrong, and the wrong the judge was talking about was the alleged fraud, not a breach of contract. If this new contract was evidence of the deceit, averred in the pleadings, no other testimony was necessary for its establishment. Parties would be exceedingly chary of making a contract for settlement of a dispute, if the contract would be evidence of a prior fraud by one upon the other.
For the errors set out in the fifth and sixth assignments, the judgment must be reversed.
Judgment reversed and venire facias de novo awarded.