(after stating the facts). — Exceptions were saved to the two instructions for defendant. An objection was raised to the first one because it precluded the jury from finding for plaintiff unless they found one of the mules had Moon-eye when sold and defendant made the alleged statement that if there was any*592thing wrong with them he clid not know it, and they had been all right since he had owned them, knowing at the time one of the animals was afflicted with Moon-eye, and misrepresenting the matter to plaintiff for the purpose of inducing a sale. -This charge is said to be inconsistent with the instruction given for plaintiff, wherein the jury were authorized, in effect, to find a verdict for him if defendant knew at the time of the sale one of the mules had the disease alleged in the petition, and concealed the fact from plaintiff. We find no direct proof of the purpose for which plaintiff purchased the mules or that he notified defendant he was buying them for some special use. Yet it is inferable from the circumstances in proof they were bought for farm work and defendant knew this. Hence, according to the doctrine of Grigsby v. Stapleton, 94 Mo. 423, if defendant knew one of the animals had á disease which would unfit her for plaintiff’s purpose, he might have been liable if the petition had declared on his failure to inform plaintiff of the fact. How a jury should be instructed in a case depends, in some measure, on the issues framed by the pleadings, and plaintiff averred a fraudulent statement, as, indeed, he -was compelled to do to obtain rescission when defendant had expressly refused to warrant; that is, to make his statement part of the contract of sale. [Benjamin, Sales (6 Ed.), p. 449.] The gravamen of the petition before us is that defendant purposely induced the sale by making a specific false statement, to-wit; that if there was anything wrong with the mules he did not know it, and they had been all right since he owned them, when he knew one of the mules was afflicted with the disease known as Moon-eye, and that his statement was false; and it is further charged to have been made with intent to deceive and defraud plaintiff. Obviously the petition does not ask rescission either because defendant was aware of the purpose for which plaintiff was buying the' mules and concealed a fact known to him which would unfit *593her .for the purpose, or because be innocently misrepresented the facts. Tbe instruction for plaintiff not only broadened bis right of recovery so as to include a cause of action not stated, but to include one untenable in law. It laid defendant liable for not revealing a disease of which he knew, regardless of whether he was aware of the purpose for which plaihtiff was buying and that the disease would render the span of mules unsuitable, and even regardless of whether a sound price was paid. This doctrine is further than the law goes, and it was peculiarly inapplicable to the present case wherein, confessedly, defendant refused to warrant the soundness of the animals. [Lindsay v. Davis, 30 Mo. 406; Moore v. Koger, 113 Mo. App. 423.] Under the pleadings and the evidence defendant’s liability depended on proof of his having made fraudulently a certain misrepresentation. The first instruction for defendant was within the pleadings, evidence and law in requiring the jury to find he had represented as alleged in the petition, knowing what he said was untrue and' that the mule had Moon-eye. Plaintiff’s brief criticises the requirement of a finding that defendant knew the mule had Moon-eye, it being argued he was guilty of deceit if he knew she had a “latent disease of any kind” when he said if there was anything wrong with the animals he did not know it. Knowledge by defendant that one of them had a disease of a serious nature, would falsify his statement and afford a cause of action. But this case was tried throughout by both parties with reference to the issues framed by the pleadings; and, as said, the petition charged that one of the mules had Moon-eye when plaintiff bought her and that defendant knew she was afflicted with said disease. All the testimony adduced by plaintiff on the issue of whether the animal was diseased, went to prove she had Moon-eye and defendant was aware of the fact. There was no *594proof she bad any other serious malady. Moreover, the instruction requested by plaintiff proceeded on the same theory; for it required the jury to find one of the animals was diseased “in the manner and form as charged in the petition of plaintiff; that said defect or disease was known to defendant and unknown to plaintiff,” etc. The instructions for defendant were drawn to fit the issues and refer to the jury the specific questions of fact raised by the pleadings and which alone were supported by testimony.

Another ground of complaint of the first instruction for defendant is this: the jury was required to find knowledge on defendant’s part' that’his statement was false; whereas if he knew, or had reason to believe, one of the mules had a latent disease of any kind, it was his duty to disclose the fact. The brief says plaintiff was only required to prove one of the mules had a disease and “defendant knew, or should have Icnoim the mude had some kind of a disease, and did not disclose his knowledge in that behalf to plaintiff.” This is no case for the use of the doctrine that a guilty scienter will be imputed to a p.arty who states as a fact of his own knowledge something he neither knew or had reason to believe he knew to be true, and which was, in fact, false.- Instances for the application of said doctrine arise now and then in actions in the nature of the old action of deceit. [Hamlin v. Abell, 120 Mo. 188; Lovelace v. Suter, 93 Mo. App. 429.] This action we take ,to be for rescission, and the scienter would be immaterial if the petition had not made it the gist of the case. We know of no decision Avhich applied the doctrine of Avhat we may call imputed scienter in this kind of action. But we need not hold it never can be applicable to such a case. It is enough to say the facts before us would exclude the doctrine. Defendant had OAvned the mules four or five months and observed the condition of their eyes. He was not pretending knowedge of a subject of Avhich he was aware he had no *595knowledge. But one of two conclusions is possible; he either knowingly and wilfully misrepresented the condition of the mules, or his statement was innocent.

It is insisted further the law laid defendant liable for any latent disease the mule had and which plaintiff could not have discovered on inspection, because defendant had special means of knowledge. This contention, like the one just considered, wanders far outside the issues and is wholly unsound. In view of the fact that defendant refused to warrant the animals in any respect, and especially refused to warrant good eyes, he is not liable for what he might have known or had peculiar opportunities to know, if he did not know, and, knowing, misstate. The fraud must be established. See cases cited in Lovelace v. Suter, supra.

The second instruction for defendant is said to have relieved him from the duty imposed upon him by law to lay open or reveal the material facts within his knowledge relating to the cause of soreness in the mule’s eyes, and to have announced the doctrine that defendant could discharge said duty by vague hints and suggestions. The charge did nothing of the kind, hut required the jury first to find defendant did not know one of the animals had Moon-eye, and told them if this fact was found and defendant drew plaintiff’s attention to the instance of one animal having had an eye ailment, and defendant only gave his opinion of the cause of the ailment, there was no false representation. This proposition is sound and based on evidence. The charge is not perfectly drawn, but contains nothing to cause a reversal. Tit declared, in effect, no false representation occurred if defendant was ignorant of the existence of the disease alleged; which is true for all the purposes of the case. Plaintiff could not recover unless defendant knew the disease alleged existed; for, as said, there is neither averment nor proof the animal had any other eye disease of a severe type. The instruction further charged, in effect, that if, being ignorant said disease *596existed but aware tbe mule’s eyes bad been sore, defendant stated this fact, then tbe rule caveat emptor applied. It does apply under tbe circumstances, unless there was a false statement as averred.

Tbe judgment is affirmed.