fore stated, and that the defendant would not have made the purchase in question had the representations not been made, then the defendant is entitled in this action to recoup against the plaintiff the damages he suffered thereby; and this is true whether the representations were made by the plaintiff innocently or not,-the plaintiff being responsible for them in such case, although he believed them to be true. A representation made with a knowledge that it is received in a sense that makes it deceptive is legally fraudulent. Designed partial statements which deceive, and concealment of facts such as to make those declared partial and misleading, are legally fraudulent. If, in this case, you find that the plaintiff represented to the defendant, during the negotiations for the sale of the land, that he had examined the land, and found it contained the same rock as the Union Mills Plaster Company land; and if you find that this statement was reasonably calculated to mean to the defendant, under all the circumstances shown by the evidence, that the land owned by the plaintiff, and which he was about to sell, contained plaster rock in the same degree and in the same way as the lands of the Union Mills Plaster Company, and that the defendant, under all the circumstances, had a right to understand the representation of the plaintiff in that way; and if you find that he purchased the land in reliance upon that representation, and in the belief, based on said representation, that the land contained plaster rock in the same degree and in the same way as the Union Mills Plaster Company land, and would not otherwise have purchased the same;' and if you find that in fact this was not the case, and that the defendant was deceived through the representations made by the plaintiff,-then the defendant is entitled to recoup in this action the damages which he sustained on account thereof."

It is true that this testimony was contradicted in great part by the plaintiff, but we are dealing simply with the question as to whether there was any testimony which warranted the court in submitting the question to the jury. We think the court was not in error in this. The land, or a large part of it, had no plaster upon it. If the testimony of the defendant be true, the plaintiff gave him to understand that he had made an examination of the land, or caused one to be made, and had found the same rock

as in the Union Mills quarry; and this statement was made in answer to an inquiry as to how the plaintiff knew about there being plaster there. It is a case where the plaintiff positively affirmed the facts concerning the quality and value of the land, and his assertion was something more than mere opinion. In the case of Jackson v. Armstrong, 50 Mich. 65, it was held that one who obtains land in a trade, and before doing so goes upon and looks at it, has nevertheless a right to show that he was misled by the representations of the other party, if they related to matters of which no one could adequately judge on a casual inspection, such as the capability of the land for drainage, and the reason why water was standing. In the present case the value of the land consisted in the plaster rock. No one going upon the land and making a casual inspection could ascertain that fact, for the rock lies some feet beneath the surface. Defendant was assured by plaintiff that it contained the same rock as the Union Mills quarry, which was a valuable property. This was a positive statement of a fact, and the defendant had a right to rely upon it, and was not bound to verify it by an independent investigation. 2 Pom. Eq. Jur. § 895.

2. Counsel for plaintiff also claim that the defendant, having paid the $50 due on the purchase price of the land, and taken the deed, with knowledge of the fraud, is now estopped from making the defense here set up, as the parties cannot be placed in statu quo. This contention cannot be sustained. The defendant by his plea set up the fraud in the transaction, and seeks to recoup his damages by reason of it. He had the right to elect his remedy. If he sought to rescind the contract, there would be some force in the contention made by plaintiff's counsel. That is not what is attempted here by the defendant. He proposes to keep what he has received, and recover the damages he has sustained This he has the right to do; and the fact that he paid the balance of the purchase money, and received his deed, after the discovery of the fraud,

will not estop him from setting up the fraud in defense to the action. Warren v. Cole, 15 Mich. 265; Lenox v. Fuller, 39 Mich. 273.

3. It is also claimed that the court erred in permitting counsel for defendant to ask the plaintiff what he paid for the land. There was no error in this. The defense claimed false representations as to value, and in such cases a broad latitude is given. In Stone v. Covell, 29 Mich. 359, the action was for misrepresentation concerning a note and mortgage taken in exchange for chattels of the plaintiff. Plaintiff was allowed to show the value of the chattels. It was said:

"We think this was entirely proper. This was an action for fraud in a bargain. In determining whether a fraud has been committed, it is always desirable to have the jury enabled to put themselves, as nearly as may be, in the place of the parties, that they may fully appreciate the bearing of their conduct. The value of what is transferred on either side must bear more or less on the motives of both."

See, also, Ganong v. Green, 71 Mich. 10.

4. Some contention is made that the court permitted the defendant to show alleged frauds outside of those claimed by the pleadings. We have examined the testimony with care, as well as the charge of the court, and are of the opinion that the court confined the defendant to the issues made by the pleadings. We think a discussion of this point is unnecessary.. The theory of the plaintiff was submitted to the jury, and the court said to them:

"A question has come into this case. It relates to the fact as to whether the defendant relied solely upon the representations claimed to have been made by the plaintiff, and was induced thereby to purchase the land in question. Therefore, unless you find that Mr. Harrington did rely solely on the plaintiff's representations, and altered his condition solely in consequence of such representations, he would have no cause of complaint, and the plaintiff is entitled to recover.

This part of the charge was certainly as favorable to the plaintiff as he could ask.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.

WEBBER v. LAWRENCE.

MORTGAGES-FORECLOSURE-PERSONAL DECREE.

A personal decree upon a bill to foreclose a mortgage will not be granted against one to whom the mortgagor conveyed the mortgaged premises by a deed given as security for the former's promise, in a separate written agreement, to pay the mortgage in case payment should be demanded by the mortgagee, where the latter was not a party to such agreement, and it could not be enforced in favor of the mortgagor because of his breach of its conditions.

Appeal from Saginaw; Wilber, J. Submitted October 18, 1898. Decided December 6, 1898.

Bill by William L. Webber, executor and trustee of the estate of Jesse Hoyt, deceased, against Frank Lawrence, Edward Corning, and others, to foreclose a mortgage. From a decree of foreclosure denying a personal decree against defendant Corning, complainant appeals. Affirmed.

L. T. Durand, for complainant.

John A. McKay, for defendant Corning.

HOOKER, J. On November 10, 1894, Frank Lawrence was the owner of a building in Saginaw, upon which he had previously given a mortgage for $15,000. It was held by the complainant. Lawrence was embarrassed pecuniarily, and on that day he obtained from defendant

Corning his indorsement upon Lawrence's note for $5,000, which Lawrence negotiated and obtained the money upon. At the same time he executed and delivered to Corning a warranty deed of the premises, which deed contained the following provision, viz.:

"The said Lawrence covenants that he is well seised of the above-granted premises in fee simple; that they are free from all incumbrances whatever, except a mortgage to William L. Webber, executor and trustee, for $15,000; and that he will, and his heirs, executors, and administrators shall, warrant and defend the same against all lawful claims whatsoever, except as against said mortgage to William L. Webber, executor and trustee as aforesaid, which said mortgage is assumed by said second party as a part of the consideration named herein."

The consideration named in the deed was $20,000. Contemporaneously with this deed, the parties signed an agreement, duly acknowledged, referring to said deed, containing the following provisions:

"Now, it is hereby understood and agreed by and between the parties hereof that said deed is received in trust by the said Edward Corning to secure the said Edward Corning for his indorsement on a promissory note dated November 10, 1894, for $5,000, due in three months, made by Frank Lawrence, and indorsed by Edward Corning, and payable at the Second National Bank of the City of Saginaw, Michigan; and if said Frank Lawrence shall pay said note, or the renewals thereof, with the interest thereon, and also pay the principal and the interest on a $15,000 mortgage now on said property, held by William L. Webber as executor and trustee, and also keep up and pay all taxes and insurance on said building, and save the said Edward Corning, his heirs or assigns, harmless therefrom, so that he will not be obliged to pay said matters, so that, at the end of five years from the date hereof, the said Lawrence shall not be indebted to the said Edward Corning for any amounts of money which he may be obliged to advance in payment of the said note first referred to, or said mortgage and interest to said William L. Webber, trustee, or for taxes or insurance, then said Edward Corning shall reconvey said property to said Frank Lawrence, or to whom he