1. Contract stamps. I. The contract was executed in duplicate, each party retaining one. That kept by the defendant : was alleged in the petition to have been duly stamped, and defendant was notified to produce it on trial. Ah admitted copy was attached to the petition. Defendant failed to produce the stamped original, *44 which was in his possession. The plaintiff, on the trial, offered to read the copy attached to his petition, to which the defendant objected, ou the ground that plaintiff had one of the originals, and it was not stamped. The court overruled the objection, deciding that, if one agreement is stamped, and defendant, after notice, refuses to produce it, plaintiff may read a copy. Defendant excej>ted.

This ruling was right. The law does not, in such cases, require duplicate originals. If an agreement is executed by hoth parties and is duly stamped, that is a binding contract upon both parties, though the other contract may not be stamped, and for that reason not binding as a contract.

II. The defendant produced testimony on the trial, tending to show, and proper to be laid before the jury as showing, the following state of facts : That the defendant resided in Des Moines, and was largely engaged in the business of buying and fattening cattle for shipment and market; that plaintiff’s farm was some twelve miles distant on the prairie; that plaintiff represented to defendant, before the written contract was made, and as an inducement to get a large price for his corn, that he had good feed-yards and accommodations for feeding cattle, and three good stock wells which would furnish abundant water for all the cattle the defendant wished to feed with the corn he proposed to buy of the plaintiff.

There was also testimony tending to show that plaintiff made similar representations to McConnell (defendant’s agent) at the time the contract in suit was executed; also evidence tending to show that McConnell had no authority to execute this contract, and that defendant, on his return home, was dissatisfied with it, and twice visited the house of the plaintiff to have an interview with him, and a further understanding as to the meaning of the word “ stock feeder,” before he would ratify the contract.

*45 There was also evidence tending to show that the cattle and hogs suffered greatly for want of sufficient water, and did not improve or fatten while kept at the plaintiff’s farm. There was also evidence that the defendant had been at plaintiff’s place the spring before, and “ herded ” cattle there, but did not then rely upon the plaintiff’s wells for water.

In order to test the correctness of certain instructions complained of by the defendant, this general outline will be sufficient. It may be remarked that the plaintiff produced evidence tending to show that he did not make the alleged representations in respect to water, etc., as claimed by the defendant, and also facts tending to show his good faith in making the contract, and throughout the whole transaction.,

Under these circumstances, the court charged the jury, “ that, if you find that the plaintiff made the alleged representations, and that such representations were false, and made for the purpose of inducing the defendant to purchase his corn at a high price, and you further find that the defendant believed and acted upon such representations, and that he had no convenient opportunity to hnoio whether such representations were true or not, at the time he ratified said contract, if he did so ratify it, then he would be entitled to whatever damages he sustained, by reason of such false representations.”

The defendant asked the court to charge that “ he had a right to rely upon representations made by the plaintiff, as to the quality of corn, wells, water, yards and troughs, instead of going and examining for himself; and if any of such representations, material and beneficial to the defendant, were untrue, then plaintiff must respond in damages for the injury which resulted to the defendant by reason of such false representations.” This the court refused to give without this modification, viz.: “But if *46 you find that defendant was on the ground, and had an opportunity to, or did examine the corn, wells, water, stockyards and troughs before he ratified said contract, then he cannot claim anything on account of false representations.”

Without further quoting from the instructions, we may observe that they lay down to the jury this principle, to wit: that, though plaintiff made false representations, and though defendant relied upon them and was damaged thereby, still, if he had opportunity to ascertain their untruthfulness before he ratified the contract, and neglected or omitted to do so, he cannot in law complain of ' the fraud.

, This case, though very lengthy, really turned upon one main point; and that was, the alleged fraudulent representations of the plaintiff respecting wells and water, and the amount of the latter.

Defendant claims that the plaintiff represented that he had three good or common stock wells, which would afford water for a certain number of cattle; that these representations were false and fraudulent, and that defendant was greatly damaged in consequence of the water not holding out.

In affirming the judgment below, we have a special regard to the nature of the alleged representations and the circumstances of the case as shown by the testimony.

The amount of water which a well will afford (as this depends upon the nature of the season and the quantity of rain that may fall) is largely, if not entirely, a matter of opi/rdon rather than of fact.

It may be conceded that the instructions referred to were erroneous, so far as they laid down the proposition that if the defendant had an opportunity, to haye examined the wells, and did not, this alone would defeat any claim he may make for damages..

*47 2. _falge rep_ resentations. Where the representations relate to a matter of fact, it is not invariably true that there can be no fraud, if the other party had an opportunity or convenient opportunity to detect the falsehood. Thus, a man cannot, in my judgment, escape liability for false and fraudulent representations that he owns a parcel of land, because the other party had “ convenient opportunity ” to examine the record.

Nor can he escape liability for positive and willful misrepresentations as to the quality of land, because the other party had an opportunity, by railroad or otherwise, to go a distance of five miles or five hundred, and examine, for himself, the character of the land.

3. — opinion. While this is so, it is also true that the law requires of a party a certain degree of vigilance and caution. Therefore, in general, a party cannot make the mere opinion of another a ground of fraud, especially where this opinion relates to the value of an article, or to what will happen in the future, in relation to which each party has, or is supposed to have, equal opportunities to know or judge for himself.

4. Instructions. If it be granted that the instruction was, strictly speaking, erroneous in respect to the opportunity for examination, still the court are of opinion that, under the circumstances of the case, the judgment should not, for that reason, be reversed.

The court take this view of the case: The defendant’s cross action was based, not upon the contract, T)ut upon frcmdulent representations, outside of the contract, as to the wells, amount of water, etc.

Now, the instructions which were refused, wholly overlooked' the necessity of proving that the plaintiff knew his representations were false; in other words, it ignored the necessity of proving the scienter, or bad faith, or a state of facts which the law would deem equivalent to *48 a willful misstatement. The fact that Bondurant made untruthful representations, and that Crawford relied upon them to his damage, does not, necessarily, make out a case of fraud. Bondurant may have believed his representations, and have had good ground and probable cause for such belief, in which case he would not be girilty of a fraud. Such a state of facts might be ground for the rescission of the contract or for other relief, but it does not establish fraud. The court are of opinion that there was no proof of knowledge, on plaintiff’s part, of the falsity of his representations, and that the instruction prayed for by the defendant was properly refused in the form it was asked.

The court are also of the opinion, that the controlling question in the case was fairly left to the jury, upon the evidence, to wit: Whether, in making the contract, the defendant relied upon his own judgment as to the extent and supply of water, or upon the representations of the plaintiff; and that the jury properly decided this question, as one of fact, against the defendant, and that a correct conclusion was reached, under the testimony.

The defendant required no stipulation to be inserted in the contract as to the number of wells or amount of water; and his loss in the transaction was doubtless considered by the jury as ascribable to the defendant’s inconsiderateness in entering into such a contract, rather than any fraud of the plaintiff.

It is therefore considered that it is not necessary to decide the question, whether there may not be fraud in certain cases without knowledge of the falsity of the representations; as, where a party having no knowledge, makes a positive and unqualified statement of a fact as of his own knowledge, upon which the other party acts, and from which the party making the statement derives an advantage.

*49 Upon this subject see the following recent and important cases: Bennett v. Judson, 21 N. Y., 238, 1860 ; opinion of Mauls, J., in Evans v. Edwards, 76 Eng. C. L. (13 C. B.), 773, 1853; Stone v. Denny, 4 Metc. (Mass.), 151, able opinion by Dewey, J.; Thomas v. McCann, 6 B. Mon., 601; Monroe v. Pritchett, 16 Ala., 785; Lockridge v. Foster, 4 Scam., 569; 1 Story Eq., § 193; Id., Agency, § 139 ; Buford v. Caldwell, 13 Mo., 477; compare and consult following late English decisions, Col lins v. Evans, 48 Eng. C. L., 820, and cases cited; Rawlings v. Bell, 50 Id., 591; Edmonds v. Evans, supra ; Wilson v. Fuller, 43 Eng. C. L., 634; Id., 1009. The question whether, to constitute fraud, there must in all cases be willful falsity of representations, we prefer to leave open until a case arises which requires us to decide it.

Affirmed.