¶1delivered the opinion of the Court:
¶2The second instruction given by the court for the appellee should not have been given. The pleas set up a failure of consideration because of a warranty by the plaintiff aS to the quantity of land in growing crops.
¶3This instruction is based upon the theory that the issue to be tried was one of fraud, and necessarily tended to mislead the jury. The latter part of the instruction is also too broad. It tells the jury that if the assertions were the expression of the judgment, opinion or belief of the plaintiff, and the crops were open to inspection, and the defendants might, by ordinary prudence, have discovered the amount of the crops, such assertions a.re no defense.
¶4The instruction should have been that, if the statements of the plaintiff Avere made only as statements of his opinion, and not as representations of a fact upon Avhich the defendants could rely, made as an inducement to the purchase; and if] further, the parties had equal means of information as to the truth of the assertion, then the defense would fail.
¶5For the error in this instruction, upon Avhich the case wholly turned, the judgment must be reversed and the cause remanded.
¶6Judgment reversed.