in that locality and the market value of improved farms in that vicinity was from $40 to $50 per acre. The highest appraisal by a disinterested witness which we find put upon this farm in its then condition is, however, $40 per acre for the cultivated portion.

Barnhardt had made no payment on the Strine farm beyond the $2,000 credited on his contract for the mortgaged 1934 acres in Indiana, and it was conceded that in addition he owed Kann for the unpaid note above mentioned and other unsecured indebtedness, for seed furnished, back taxes on the Indiana land, etc., $599.98. This the trial court instructed the jury should be deducted from any damages they might find plaintiffs had suffered because of the claimed fraud, or if they found plaintiffs not entitled to recover the verdict should be for defendants in that amount under their claim of recoupment, and stated the measure of damages applicable to plaintiffs' claim would be the difference between what the property would have been worth if defendants' representations, as claimed, were true and what it was actually worth.

While conceding the general rule, defendants' counsel contend that its application would be unjust and inequitable under the facts in this case, where plaintiffs themselves falsely stated the incumbrance upon their Indiana property and only had at best about $1,400 interest in the Strine farm upon which they made no further payments and abandoned it at the end of the second season; and in any event the jury should have been instructed that plaintiffs having failed to remain and, on their part, abandoned the farm and contract, recovery could not exceed their actual interest in the land.

No requests were tendered to the court upon the question of damages by defendant. This is an action at law for a claimed fraud perpetrated upon plaintiffs with no claim of rescission or tender back of the prop

erty. They could have either disaffirmed the contract, tendered reconveyance with demand for refund, or reconveyance of the Indiana property, and, if refused, brought suit to recover the same or affirm the contract and, retaining that which they acquired under the same, bring an action for fraud to recover as damages the difference between the value of what they would have received if the representations were true and the value of what they actually received. Smith v. Realty Co., 175 Mich. 600. They saw fit to adopt the latter remedy and affirm the contract. Their misrepresentation as to the amount of incumbrance on their Indiana land was condoned and settled shortly after they moved upon the farm, before they had on their part learned of the fraud they now complain of, as they claim, and it cannot now be urged by defendants as a bar to this action. Neither is plaintiffs' inability to fulfill their future obligations under their contract for purchase of the Strine farm to be determined as a matter of law. Whatever their indebtedness or delinquencies may otherwise be, they are not shown to have been, when this action was brought, in default on their contract to purchase the farm signed by them at their home in Indiana, drawn up and signed by Long for defendants, which they subsequently ratified, accepted the benefits therefrom and have since retained. It recites that "This contract contains all the agreements between the parties hereto," acknowledges payment of $2,000 down, and makes the deferred payment of $4,000 "payable in five years from March 1, 1915, at 6% interest from date.”

The circumstance that plaintiff, chaperoned by Long, went to and spent an hour on the farm looking it over at the time of year shown would not preclude him as a matter of law from making proof of material, fraudulent representations as to facts not then discovered by or reasonably apparent to him, such as the

exhausted condition of the soil, possibility of draining the swamp, or that the land had a clay sub-soil. Whether the truth of these claimed representations of facts was apparent or discoverable by him under the circumstances was not a question of law. Jackson v. Armstrong, 50 Mich. 68.

In the re-examination of a willing witness for plaintiff named Rowan he was asked, "Is this farm of Mr. Barnhardt's subject to frost?" to which defendants' counsel objected as immaterial and because no charge of that kind was declared upon by plaintiff, whose counsel said in reply that it was brought up on crossexamination, to which the court said:

"No; that is not all there is about it. The plaintiffs' claim is, the defendant represented it good for farming purposes, for crops generally, and if the locality and this land in particular is subject to frosts and to freezing that is pertinent and should be inquired into. The objection is overruled. It goes to the very gist of the action-whether it is good for farming purposes or not."

The witness was then permitted to answer the leading question if it was more susceptible to frosts than other farms in that vicinity, and said the rear of it was, where near the swamp, the same as land he was working, but the balance as a rule was not. As no claim of this nature is made in plaintiffs' declaration, nor covered by any of the representations claimed to have been fraudulently made by defendants, the argumentative ruling was particularly prejudicial in connection with the fact which was incidentally and inevitably disclosed in the progress of the trial that plaintiffs had lost their first crops from that cause in the "year of the big frost" which was quite general in that part of the State. Plaintiffs' real claim of fraud related to the soil, not the elements; but, carried through the trial by evidence, argument and ruling of

207-Mich.-16.

the court, is emphasized the misfortunes and distress which befell plaintiffs and their children by reason of the failure of their crops during those two years, concededly due, in part at least, to the year of the big frost, followed by an unusually hot, dry season. On this subject the court told the jury they had a right to have "all the sympathy that is commensurate with the situation for an unfortunate in any and every case," which should not, however, influence their finding, and further said in part:

"You cannot help sympathizing with Mr. and Mrs. Barnhardt and the family; may be you sympathize with Mr. Kann in his troubles, but you must not let that influence your verdict,-not one particle."

Barnhardt was permitted to testify that he was unable to earn a living from the place for his family and members of it were obliged to work elsewhere to that end, and his wife after testifying in general to the same effect was permitted against objection to testify as to their numerous family, that their friends and neighbors contributed to their support and gave them clothes for the children, because they did not have enough and needed them. When counsel for plaintiff had apparently exhausted the subject and said, "I think that is all," the court suggested:

"Why don't you find out why she didn't buy herself clothes and clothing for the family?"

Counsel then renewed the subject, asking:

"Q. Why didn't your husband and yourself buy them clothes?"

Objection to which was overruled and the witness answered:

"He didn't raise enough on the farm to buy the clothes we needed, and he had to work out."

Plaintiffs' counsel cite in support of this line of inquiry Yanelli v. Littlejohn, 172 Mich. 91. In that

case there were no children whose deprivations were or could be stressed to rouse the sympathy of a jury. Commenting that some of the testimony complained of was remote and might properly have been excluded, the court went no farther than to hold:

-"that whether the plaintiff was able to live on the place, and the amount that could be produced there, were material questions, as well as the efforts made. by the plaintiff and family in that direction."

The testimony in this case did not stop there but was elaborated in the distress of plaintiffs' children to a point where the court felt impelled to tell the jury that they could not help sympathizing not only with the plaintiffs in the case but with their family, and "may be" even with defendant Kann, as to whom no small children were shown to appertain. Despite this somewhat equivocal caution, we are impressed that a prejudicial tone was given to the case in the particular complained of, diverting from a fair and impartial trial of the real issues, which is reflected in the verdict.

Upon the chief grounds urged for the defense why a directed verdict should have been granted, it may be stated that under the testimony in this record we cannot accept the contention that as a matter of law plaintiffs have by any conduct following discovery of the claimed fraud waived the same, or that lack of diligence after its discovery precludes this action. The relief asked in this form of action does not involve the parties being placed in statu quo, but is only to recover damages for a wrong done, and no special diligence is required to discover the fraud or in bringing such action after discovery short of the statute of limitations. Dayton v. Monroe, 47 Mich. 194; Smith v. McDonald, 139 Mich. 225; Smith v. Werkheiser, 152 Mich. 177 (15 L. R. A. [N. S.] 1092); Wegner v. Herkimer, 167 Mich. 587; Hutchinson v. Westbrook, 191 Mich. 484.