Respondent purchased a span of mules from appellant in May, 1916. Upon the day upon which respondent came into possession of the mules, being the day following such purchase, she returned them, and appellant has ever since retained their possession. Appellant brought this action to recover the agreed purchase price, and respondent defended upon the ground that sine was led to make the purchase through fraud and deceit practiced upon her by appellant, -and that upon discovering such fraud and deceit she rescinded the contract. Trial was had to the court without a jury. The trial court found in favor of respondent. From the judgment of such court, and from an order denying a new trial, this appeal was taken.

[1] There 'are numerous assignments of error. As to certain errors assigned, appellant’s brief contains no proper record to *405entitle the same to our consideration. There are numerous rulings on the admission of evidence that are assigned as error; but, in view of the findings of the trial court, and the fact that the trial was to a court, and not to a jury, these rulings are so clearly without prejudice to the appellant that we are not called upon to' determine whether any of them may have been technically erroneous.

[2] Respondent relied upon certain alleged misrepresentations made to, and deceit practiced upon, her in relation to' the age of the mules and their physical condition. The trial court found with the respondent as to both these matters. It seems clear to us that the finding o'f the trial court, so1 far as it related •to the alleged misrepresentations in relation ter the age of the mules, was unsustained by the evidence. There is no evidence" that appellant knew the mules to be more than nine years of age, the age represented to the respondent. The nearest approach to any evidence showing any other knowledge was evidence that appellant bought the mules in December, 1908, at an auction sale, in connection with which sale the mules had been advertised as being three years old. There was, however, absolutely no evidence that such advertisement was in any way brought to the attention of appellant. Furthermore, there was no proof that the mules were yet eleven years of age at the time of their purchase by respondent, and there -is no evidence whatsoever that respondent would have refused to make the purchase, provided she had been advised that these mules were ten years, rather than nine years, of age.

(3) There is left for our consideration only the alleged deceit in relation to the physical condition of the mules. It appears_ undisputed that at least -one of these mules was, to the knowledge-of appellant, afflicted with a disease known as the heaves, which, disease the trial court found to be one injurious to the mule’s-wind, to be latent in its nature, andl to diminish the value of the animal afflicted therewith. These findings -of the trial court are fully sustained by the evidence; but appellant insists that these matters cannot be urged as a -defense, for the reason that it conclusively appears-he refused to warrant these mules, and that, when inquiry was made of him in relation to- the physical condition of the mules; he not only refused to express any opinion thereon, *406but told- respondent, that she might try- the mules and- ascertain their condition, and -that as a. matter of fact, respondent — or rather-her husban-d, through whom this transaction was conducted — did exercise the mules with a view -of -determining whether their wind was all right, and after such trial accepted them. It appears, however, that such a trial as was given woul-d not necessarily reveal the heaves, and it is quite clear that in this case it did not, all of which appellant was in as good a position to know as was respondent’s representative; appellant -being present at this trial. So it is clear that appellant knew respondent purchased these mules in ignorance of this latent disecase. This court, in the case of Windedahl v. Harris, 37 S. D. 7, 156 N. W. 489, stated that:

“Deceit can consist in silence, when honesty requires speech, as much -as- in speech itself. Section 1201, C. C.” See 12 R. C. D- 3°5-3io-

[4] We agree with the- Supreme Court of Minnesota that:

“If a'party conceals a fact material to1 the transaction, and peculiarly within his own knowledge, knowing that the -other party acts upon the presumption that no such fact exists, it is as much of a fraud: as if the existence of such fact were expressly denied, or the reverse -o-f it expressly stated.” Thomas v. Murphy, 87 Minn. 358, 91 N. W. 1097.

The law applicable to this case is well stated in Sockman v. Keim, 19 N. D. 317, 124 N. W. 64:

“But, when there are no representations made by the vendor, a deceit may equally be practiced by his silence; but in such cases an important distinction must be observed, for whether a cause of action for deceit will'arise from mere silence and a knowledge of the defects in the article sold will depend upon the fact whether the -defect is patent o-r latent. In Brown v. Gray, 51 N. C. 103, 72 Am. Dec. 563, the distinction -is thus stated: ‘When the unsoundness is patent — that-is, such as may be discovered by the exercise of ordinary -diligence — mere silence on the -p-art of the vendor is not sufficient to establish the deceit, although he knows of the uns-o-undness, because the thing speaks 'for itself, and' it is the folly of the purchaser not -to attend to it.’ But ‘when the- unso-und-ness is latent — that is, such as -cannot be disr covered by the exercise of ordinary diligence — mere silence on *407the part of the vendor is sufficient to establish the deceit/ provided he knows of the urisoundness. If the seller knows of a latent defect in the property, that, could not be discovered by a man of ordinary observation, .he is hound to' disclose it. If the defect complained of in the case at bar was unknown to the plaintiff and of such a character that he would not have purchaser the mare, had he known of if, ahd! was a latent defect such as would have ordinarily escaped the observation' of men engaged in buying horses, and) the defendants, knowing this, allowed the plaintiff‘to purchase without communicating the defect, they were guilty of fraudulent concealment, and must answer accordingly. As supporting these views, see Grigsby v. Stapleton, 94 Mo. 423, 7 S. W. 421; Lunn v. Shermer, 93 N. C. 164; Ross v. Mather, 51. N. Y. 108, 10 Am. Rep. 562; Beeman v. Buck, 3 Vt. 53, 21 Am. Dec. 571; West v. Emery, 17 Vt. 583, 44 Am. Dec. 356; Darling v. Stuart, 63 Vt. 570, 22 Atl. 634; Stevens v. Bradley, 89 Iowa, 174, 56 N. W. 429.”

[5] Without any prayer for equitable relief in respondent’s answer, the trial court — a municipal court — 'decreed the cancellation of the check. While the granting of such relief coulcl in no manner prejudice appellant, yet the trial court should' keep within its jurisdiction, and we direct the modification of the judgment, so that the judgment shall be for the dismissal of the complaint upon its merits, and for costs.

As so modified, the judgment, as 'well as the order appealed from, are affirmed, with costs for respondent.