#### EMILY STAFFORD, ADM’R, &c. *vs.*ALLEN NEWSOM.

Where an action was brought to recover the value of certain horses, alleged to have died from eating corn, mixed with arsenic, which the plaintiff bought from the defendant; *Held,*that if the defendant had fraudulently concealed from the plaintiff the fact, that arsenic was so mixed with the corn, yet the plaintiff could only recover damages to the value of the corn, provided he was informed, before he gave it to his horses, that arsenic had been mixed with it.

It is not sufficient, in an action in the nature of deceit, to prove that the rep« resentations of the defendant were *calculated*to deceive, but they must be made with *intent*to deceive.

The case of *Hamrick vs. Hogg,*1 Dev. 350 cited and approved.

Appeal from the Superior Court of Law of Montgomery County, at the Spring Term 1849, his Honor Judge Caldwell presiding.

This is an action on the case brought to recover damages, because a certain quantity of corn, bought by the plaintiff of the defendant, was infected with arsenic, whereby the plaintiff lost three horses, which had been fed on said corn.

The declaration contains several counts, but the one mainly relied upon is the count in deceit.

On the trial, it appeared, that the plaintiff went to the house of the defendant, and, after some chaffering, agreed to buy of him six bushels of corn, and'the price fixed on was eighty two and a half cents per bushel: that it was kept in boxes in the back room of a store house, and was measured out to the plaintiff and put into his bags. By the testimony of a witness, introduced by the plaintiff, it appeared, that after the price had been agreed on, and after the six bushels had been measured and put into the *508bags, the clerk of the defendant observed, that arsenic had been put in two plates of meal in the said back room for the purpose of killing rats; upon which the plaintiff said, that he did not like to take the corn, if it had been exposed to arsenic ; that the defendant said, there was no danger, that he had sent a part of the said corn to. mill: that he would be responsible for all damages, but that the plaintiff had better not tell his wife of it, as wo* 'men were timid: that the plaintiff took the corn home, fed it in small quantities to his horses : that they became suddenly sick, and in a short time died. By the testimony of the clerk, who was examined by the defendant, it appeared, that, after the price had been agreed on, and about half the corn had been measured, he remarked, that arsenic had been about: that some had been put in two plates of meal in the said room to kill rats: that the plaintiff said, if that were the case, he did not like to take the corn: that the defendant then remarked, there was no danger, but, if he did not like it, to put it back in the box : that the balance of the corn was then measured and put into bags and taken off by the plaintiff. And the said clerk also testified, that not more than ten grains of arsenic had been put into small plates of meal.

Sundry witnesses were examined in relation to the arsenic and the corn, and how it affected the defendant’s hogs, and as to the defendant’s knowledge of their being sick, and how and what quantity wmuld affect a horse, and how the horses in question were affected.

The Court charged the jury, to entitle the plaintiff to recover, he must make it appear, that the corn was infected with arsenic ; that the defendant knew, and con. cealed it; and that the plaintiff’s horses died, by reason of their eating the said corn. And the Court also charged, that, if the defendant, or his clerk, told the plaintiff that the corn had been exposed to arsenic, so as to put him on enquiry before the contract was completed, the *509plaintiff would not be entitled to recover’; but, if such information were given after the property in the corn vested in the plaintiff, it would not avail, and left it to the jury to decide, which of the witnesses was most to be relied on, as to the time the subject of the arsenic was mentioned, and as to other matters, in relation to which they deposed. And the Court further charged, that, if what the defendant said to the plaintiff about the arsenic was calculated to put him off his guard, rather than excite him to enquiry, then the talk about the arsenic would not avail' the defendant.

The jury rendered a verdict in favor of the plaintiff for the value of the horses. A new trial was moved for, because of misdirection on the part of the Court, and because the Court omitted to charge the jury, that the defendant was sued for a fraud, and not upon a contract.

The new trial, moved for, was refused, judgment rendered for the plaintiff and the defendant appealed, and gave bond.

*Strange,*for the plaintiff.

*Iredell,*for the defendant.

Nash, J.

The first portion of his Honor’s charge is free from exception. To entitle the plaintiff to recover, it was necessary for him to show, that the corn was poisoned with arsenic ; that the defendant knew it and concealed it: and that he was injured thereby. And it is correct, as chai’ged, that if the defendant, or his clerk, told the plaintiff, that the corn had been exposed to the influence of arsenic, so as to put him on enquiry, before the contract was completed, the plaintiff could not recover. So far all is correct. We do not concur with his Honor in the subsequent part of the charge. He proceeds “but if such information were given after the property in the corn vested in the plaintiff, it would not avail.” We think in this *510there was error. The plaintiff claimed damages to the amount of the value of the three horses, which, it was alleged, had been poisoned by eating the corn, and had died. Upon the supposition, that a special action on the case can be maintained for the loss of the horses, the important enquiry, in this case, was as to the amount of dam • ages. If a seller makes a fraudulent representation of an article, yet the purchaser cannot maintain an action for deceit, if at the time of the contract, or before, he knows the fact to be otherwise than as represented. So in this case, if at the time the plaintiff fed his horses with the corn, he knew, or had been informed, it was poisoned with arsenic, although that information came to him after the contract was made, he cannot maintain an action for their loss; because it was his folly to make the experiment, after obtaining the information. The plaintiff, then, was entitled to damages, if the defendant did cheat him, only for the value of the corn, and not for that of the horses, for, either before or after the contract was closed and before the corn was used by him, he was apprised of the fact.

We think there was error also in the closing part of the charge. The jury were instructed, that if what the defendant said to the plaintiff about the arsenic was c«i-*culated*to put him off his guard, rather than excite to en-quiry, then the talk about the arsenic would not avail the defendant. The action for deceit rests in the intention, with which a representation is made, or a fact not mentioned. It was not sufficient, that the representation made should be *calculated*to mislead — for that may be done by the most honest communication — but the representation must be made with the intent to deceive. Moral turpitude is necessary to charge a defendant in an action for a deceit. *Hamrick*v. *Hogg,*1 Dev. 350.

Ter Curiam. Judgment reversed and a *venire de novo*ordered.