#### Karl Schmemann v. John Rothfuss.

*Assumpsit against collecting agent*— Oomersations—Oosts *as damages.*

Where an agent, intrusted with, the collection of debts and foreclosure of mortgages, seeks to deceive his principal by representing that payments have not been made on a mortgage, the latter can maintain *assumpsit*on the common money counts against him for moneys received in making collections thereon and for moneys advanced to be used in foreclosing it. And it is proper to examine plaintiff as to every conversation had with defendant in regard to the transaction in controversy especially where it is claimed that he tried to prevent plaintiff from having an interview with the mortgage debtor.

Costs were awarded defendant in error by way of damages for the delay caused him by taking the case up on frivolous assignments of error.

Error to the Superior Court of Detroit.

Submitted June 23.

Decided June 29.

Assumpsit on the common money counts by Rothfuss against Schmemann for money had and received as Roth-fuss’ agent in making collection on a mortgage which he had *454negotiated for Rothfuss, and for moneys advanced by Roth-fuss to carry on its foreclosure. There was testimony tending to show that Schmemann had deceived Rothfuss as to payments made and that Rothfuss had directed him to foreclose upon his representations that the interest had not been paid when in fact it had been. Plaintiff was examined as to what Schmemann had told him as to interest and as to his paying Schmemann for his disbursements in foreclosing, and was allowed to testify under objection as to whether he had had any farther conversations with Schmemann. The jury found for plaintiff and defendant assigns error upon the admission of the testimony referred to and upon the judge’s refusal- to charge that plaintiff could not recover in that action the moneys paid defendant and allowed to be retained by him on account of services and disbursements in the foreclosure.

Affirmed.

*DeForest Pome*for plaintiff in error.

*Otto Kirchner,*for defendant in error,

cited in support of the right of action: *Dupen v. Keeling*4 C. *&*P. 102; *Robson v. Eaton*1 Term 62.

Marston, C. J.

We can discover no valid objection to the question ashed the witness Rothfuss, the plaintiff, as set forth in the first assignment of error. The plaintiff could properly be interrogated as to each and every conversation he had with the defendant regarding the transaction in controversy. Especially is this so in the present case where it was claimed, and evidently not without reason, that the defendant was endeavoring to deceive the plaintiff and prevent him from having any interview with his debtor.

The second assignment of error relates to the refusaL of the court to instruct the jury according to the defendant’s request. This was fully covered in the instructions given. In substance the instructions given were that if the plaintiff at the time the payment referred to was made, knew that the interest due upon his mortgage had been paid, and that his instructions to the defendant Schmemann were to fore*455close because of non-payment of the principal, under such circumstances he could not recover back the balance paid by him for services in the foreclosure. The court also instructed the jury, and very properly, that if the plaintiff in this case was informed by Schmemann that the interest had not been paid him, when in fact it had, and Schmemann was thereupon instructed “if this interest is not paid,go on and foreclose,” and the mortgage was foreclosed not because of nonpayment of interest, that for such services payment made might be recovered back, if made in ignorance of the facts. Indeed, a pretty clear case is required to enable a party to retain the profits derived from his own wrongful and deceitful act.

The judgment will be affirmed with costs, and an additional allowance of thirty dollars will be made the defendant in error for the damages sustained by him in consequence of the delay in bringing this case here; the errors assigned being considered frivolous.

The other Justices concurred.