The evidence, issues and verdict present this situation: A real estate agent makes certain false representations as to the character and condition of a house which he proposes to sell, but these representations are made without knowledge of their falsity, and hence as a necessary consequence without intent to deceive. It is therefore apparent that this action cannot be maintained by the plaintiff as a suit for damages for fraud and deceit. Scienter and intent to deceive are essential elements of actionable fraud. Corley Co. v. Griggs, 192 N. C., 171, 134 S. E., 406; Peyton v. Griffin, 195 N. C., 685, 143 S. E., 525.
If it he conceded that the action cannot be maintained as a suit for damages for fraud and deceit, the question then arises: Can it be maintained upon the theory of rescission? Ordinarily the right to1 rescind a contract is built upon fraud, mutual mistake or mistake of one party induced by the fraudulent or false representations of the other.
Apparently the verdict would support a judgment for rescission upon the ground of mutual mistake, for the reason that the plaintiff did not intend to buy a stone veneer house, nor did the defendant Sabin intend to sell such a house. But the case was not tried upon that theory. Shipp v. Stage Lines, 192 N. C., 475, 135 S. E., 339.
The trial judge charged the jury as follows: “Now, gentlemen, if-you should find from all the evidence, and by its greater weight, that the *246defendants, through their agent, made a false representation with respect to this property, bearing in mind the evidence I have recited to you bearing upon this, and the law I have given you, if you should find that by the greater weight of the evidence, then it would be your duty to answer the first issue yes. If you fail to so find it would be your duty to answer it “No.” Again the court charged the jury: “If you should answer the first issue, “Yes,” then the court charges you, as a matter of law, that you should answer the third issue “Yes.”
The first instruction quoted above is to the effect that false representation without more would warrant the rescission of a contract, and the second instruction peremptorily directs the jury to answer the third issue as to rescission upon a finding of mere false representation.
Manifestly, if rescission is sought upon the ground of fraud, then actionable fraud with all its essential elements must be found by the jury. As mistake is neither set up in the pleadings nor submitted to the jury, we are of the opinion and so hold that the defendants are entitled to a new trial. Of course, if mistake had been invoked as a ground for rescission, positive representations by the agent, even though made through inadvertence would not preclude recovery. This idea was expressed in Long v. Guaranty Co., 118 N. C., 503, 101 S. E., 11. “The written agreement by which the settlement was evidenced could not well be reformed and afford full and adequate relief, but this must be done by cancellation of the instrument and rescission of the contract of compromise and settlement, which was entered into by ignorance and mistake as to the true facts, induced by the positive representation of the defendant’s agent, albeit that it was made without fraud, and by the inadvertence and mistake of the agent. By its own conduct, for that of the agent is imputed to it, the defendant has induced the plaintiff to a course of action which will greatly prejudice him, if it is not reversed, he being without any fault, but being misled as to material facts by the agent’s assertion in respect to them.”
New trial.