#### WILKINSON v. ROOT.

Witness — evidence—competent—fraud—rule of damages.

A man who has purchased under the plaintiff, and given him full price, without stipulation' for any reduction, is competent to prove a fraud in the sale to his vender.

In an action on the case for the fraud of one partner, it is not competent to prove what another partner said about the subject afterwards.

Words are not competent in such case to establish this fraudulent representation of a quantity of iron ore to prove that the defendant purchased of others.

If one purchase property on his own knowledge, he cannot recover for fraudulent representation of it, because he has not been deceived by it.

If one by fraud has been induced to purchase property above its value, the rule of damage is the difference between the *represented*and the *actual*value at the time of purchase.

Case for fraudulently representing a tract of land to contain iron ore sufficient to prosecute certain iron works for a certain number of years, and thereby inducing a purchase of the works and land. Plea not guilty.

*Tower,*who since the plaintiff’s purchase, bought of him an interest in the works and has agreed to pay according to Wilkinson’s contract price, was offered as a witness by the plaintiff.

*Wade*and *Whittlesey,*for the defendant,

objected, that a part of Tower’s purchase was unpaid, and if the plaintiff recovered, he might claim a portion of the sum recovered, and set it off against the plaintiff’s claim on him.

*687
      *P. Hitchcock,*contra.

*E. Wade,*for the defendants,

objects, and cited *Gow. on Part.*208; 2 *Stark. Ev. 35,*47.

P. Iiiichcook, contra.

Wood, J.

Wilkinson purchased of Root for a certain sum; he sold to the witness one-sixteenth for one sixteenth of the amount of the purchase. If the plaintiff recover now for a fraud in the sale, what right has the witness to any portion of it? This matter is not included in his contract. He agreed to pay a certain sum, which is in fact one-sixteenth of the original purchase, but he was not defrauded — he-bought with his eyes open. If the plaintiff recover, we do not see the witness’s claim to any portion of the amount. He made no stipulation for any reduction, on any account. He may be sworn.

The witness was asked what Wheeler said about the ore, and the representations of the defendant being false. Wheeler was interested with the defendant in the works sold, and is now dead.

Wood. J.

The question is improper — Wheeler is no party to this suit. You claim to recover on the false representations of the defendant himself — their falsity must be established by evidence, not by the declarations of a third person. The partnership makes no difference — the suit is for the act of Root, not the acts of Wheeler, or of Wheeler and Root.

The witness was then asked if Root, while he run the furnace on his own account, did not purchase ore procured from other land.

This was objected to as irrelevant, and overruled.

After the evidence was closed, the defendant’s counsel asked the Court to instruct the jury,

1. That if the plaintiff purchased without relying upon the defendant’s representation as to the quantity of ore and the value of the works, he cannot recover, though the representations were false.

2. If he recover, the rule of damages is the actual injury or loss to the plaintiff by the fraud.

Wood, J.

If the plaintiff purchased from his own knowledge of the property, and was not induced to purchase by the representations of the defendant, he was not defrauded by them, and, of course, cannot recover.

If the false representation induced the purchase, and the*plaintiff is entitled to recover, he should recover what the jury find to be the difference between the *represented*and *actual*value of the premises at the time of the purchase.

Verdict and judgment for the defendant.