The allegations and averments in the declaration are as follows: The defendants Selkirk and Whitford were a firm, and for some time previous to December 17, 1885, were engaged in the business of retail dealers in silver and jewelry and plated ware, in the city of Charlotte, in Eaton county, and were at that time indebted to the plaintiffs in the sum of $623.99, which was then due to said plaintiffs, and which they had requested the said firm to pay, but they had refused. The plaintiffs aver that at this date the firm was doing a safe and prosperous business, and that their stock of goods would then have inventoried at the cost price from $8,000 to $10,000, and against which there was no incumbrance. Plaintiffs further aver that, the defendants fraudulently intending to deceive the plaintiffs, on the 18th day of December, 1885, the defendants Selkirk & Whitford gave a mortgage to the defendant Almeda Whitford upon all their stock of jewelry, merchandise, and fixtures for the payment to her of the sum of $2,886.45 on or before the 1st day of March, 1886; and the said firm of Selkirk & Whitford on the same day gave another mortgage, purporting to be subject to the other, on the same property, to defendant John Levy for the payment of $2,000 on or before the 28th day of December, 1885; and that both of said mortgages were duly recorded in the city of Charlotte. That the said Selkirk & Whitford, after contriving together with said Almeda Whitford and John Levy, and with the intention to cheat and defraud the said plaintiffs, did, on the 26th day of December, 1885, make an assignment of all their property, except that which was exempt from execution, which they owned, to Eliza Flora, for the benefit of the creditors of Selkirk & Whitford, and filed the same with the clerk of Eaton county. That, including said mortgages, it was made to appear by the assignment that said firm's total indebtedness was $16,740.82, and the assets so assigned were appraised at $4,248.22. That on the 13th day of March, 1886, said indebtedness then being due and owing to the plaintiffs from the said firm, the defendants, well knowing the premises, falsely and fraudulently represented to the plaintiffs that said firm were wholly insolvent and unable to pay any part of these debts. That said mortgages were made and delivered in good faith, and for the consideration expressed, and were valid subsisting liens upon the property therein described. That the assignment was made in good faith, and without preferences. And the plaintiffs further aver that they, "confiding in said defendants, and the representations made to them by the defendants, as aforesaid, and the facts set forth in the chattel mortgages and said assignment," afterwards, on the 13th day of March, 1886, did agree with the said Selkirk & Whitford and the other defendants to release and discharge the plaintiffs' indebtedness to said firm by the payment by said Levy to plaintiffs of the sum of 33 per cent. of the said claim, and at the request of the defendants they assigned their said claim to defendant Levy, receiving such payment therefor. And plaintiffs further aver that said mortgages were not made in good faith, nor was either of them a valid and subsisting lien upon the property described, and was well known so to be by the defendants. That they were not given to secure any indebtedness of said firm, but to hinder and delay plaintiffs in the collection of their debt, and the assignment was not made in good faith, and was not of all the assignors' property, and was not made without preferences, and was fraudulent and void, and was made with the fraudulent design to obtain a release of the claims against said firm at a less sum by far than was due thereon. That at the time of the assignment to Levy said firm owned, in its own right, a large amount of other property and goods and choses in action and money, held by some other person for them, to the amount of $25,000, not mentioned in the assignment, and which said firm fraudulently concealed from the plaintiffs. And they further aver that said defendants represented to plaintiffs that the money paid on said release was the money of said Levy. And they further aver that said money was not Levy's, but that of said firm, and that this fact was known to all the defendants, and that

by such fraudulent representations and concealments of defendants they have been damaged to the amount of $2,000. The foregoing is the substance of the first count in the declaration, and the second count sets up the same representations and facts, which are relied upon to maintain the action in the first count. To the declaration the defendants Selkirk & Whitford pleaded the general issue. The defendants Almeda Whitford and John Levy appeared separately in the cause, and each filed a general demurrer to the declaration. The demurrers were argued before Judge HOOKER, who made the following decision in the case: "The declaration is in case, charging defendants with combining, and by means of certain false pretenses and tokens inducing the plaintiffs, who were creditors of defendants Selkirk and James L. Whitford, to assign their claim to defendant Levy for a sum much less than its face. A declaration of this kind should show:-First, that the representations were made by all the defendants, or that by reason of their collusion they may be treated as participating in them; second, that they were made with the design of influencing the defendants' conduct; third, that they were believed to be true by plaintiffs, and were relied upon by them, and that they induced the desired action on their part; fourth, that the representations were known to be untrue by the defendants when made; fifth, that the plaintiffs suffered damage from the action that they were induced to take, which, being special, should be specially pleaded; sixth, that the damage followed proximately the deception. As the declaration fails to sufficiently state these things, the demurrers will be sustained, with costs, to be taxed. Plaintiffs may file an amended declaration within thirty days, upon payment of costs." Judgment was entered according to the foregoing conclusions, and the plaintiff's bring the case to this court by writ of error.

It is only the sufficiency of the declaration, as against the defendants Almeda Whitford and John Levy, that is now before us for consideration. We think the circuit judge made a proper disposition of these demurrers. It appears from the record that Mrs. Whitford's mortgage was made on the 18th day of December, 1885, and the same day the other was made to Mr. Levy; that on the 26th day of the same month the assignment of the property was made to Eliza Flora, and not until the 13th day of March thereafter the alleged fraudulent transaction occurred which is made the subject of this action. It is the fraudulent obtaining the settlement of the plaintiffs' claim for 331 cents on the dollar that constitutes the grievance in this case complained of; and there is no averment in the declaration that the mortgages and assignment were made with the knowledge of the parties demurring, for any such purpose, nor that the making of the mortgages was a part of the same transaction had by defendants Levy and Mrs. Whitford with a view to bringing about the claimed fraudulent compromise. It must be recollected the indebtedness claimed against these demurring defendants was not contracted by reason of the alleged false representations, or of any representations made by said defendants demurring. They were under no legal or equitable obligation to pay the debt compromised, or any portion thereof; and, had they made all the representations charged in regard thereto, they could not have been made liable. Especially must this be so as long as the declaration does not allege that the plaintiffs were not ignorant of the facts represented, and there is no averment in the declaration that the plaintiffs were misled by the representations, whatever they were. The representations are alleged to have been made by Selkirk and Mr. Whitford, and it is not averred that plaintiffs believed them. It is not sufficient to charge a person with cheating and defrauding another only, or with contriving and confederating with others to defraud, to make out a case of fraud, but the declaration must definitely and issuably set forth the facts complained of, relied upon for a recovery; and a declaration alleging as the cause of action false statements, where there is more than one defendant, should aver a conspiracy, and enumerate the false

statements and the circumstances which are supposed to create the liability, with particularity; and, if not made by all the defendants, it should be averred hat they all colluded and conspired together in such manner that the false representations by those who did not participate in making them were authorized by them, and in furtherance of the common design and fraudulent purpose. It should also be averred that the false statements were believed to be true by the plaintiffs, and, thus believing, were relied upon by them, and that they induced the action taken by the plaintiffs which resulted in damage to them. In examining this declaration, we find an absence of nearly all of these essential requisites, so far as it relates to the defendants, and we think their demurrers must be sustained. The judgment at the circuit will therefore be affirmed. The other justices concurred.

HAMILTON v. FROTHINGHAM.

(Supreme Court of Michigan. October 19, 1888.)

ESTOPPEL-IN PAIS-BY CONDUCT.

Plaintiff, who has conducted two trials on the theory of a particular contract, is estopped from alleging, on a third trial of the same cause, an entirely inconsistent contract.

Error from circuit court, Washtenaw county; C. B. GRANT, Judge. Noah W. Cheever, for appellant. Sawyer & Knowlton, (Wm. P. Wells, of counsel,) for appellee.

LONG, J. This action was brought, in the circuit court for the county of Washtenaw, to recover for services in the sale of a printing establishment in Ann Arbor, known as the "Ann Arbor Register." The defendant, Dr. Frothingham, in 1882 purchased the machinery and stock of the plant known as the "Ann Arbor Printing & Publishing Company," and carried on the business of job printing, and edited and published, in connection therewith, a newspaper called the "Ann Arbor Register," until the latter part of August, 1883. Plaintiff claims that, having had some experience in selling property for other people, he was approached by the defendant some time in April, 1883, on the subject of making a sale for him of his printing establishment. After considerable general talk, and many interviews in reference to the matter, on or about the 18th of July, 1883, plaintiff and defendant made an agreement, by which the plaintiff was to endeavor to find a purchaser for the defendant's newspaper and printing concern; and, in case of his being able so to do, he was to have for finding a purchaser all he could get for the property over $8,000. Plaintiff claims on making this agreement he immediately wrote to one E. Kittredge, of Eaton Rapids, requesting him to come to Ann Arbor, and look over the property. That in response to this letter Kittredge came the next day after it was received, and looked over with Hamilton the press, machinery, stock, and other property, and was introduced by him to the defendant as a possible purchaser of it. That, after some negotiations in reference to the purchase, Kittredge said he could not pay cash entirely, but was desirous of turning in some city property he owned in Minneapolis; and defendant consented to entertain this proposition, provided he might have an opportunity to make inquiries in reference to the real estate owned by Kittredge in Minnesota. To this no objection was made by Kittredge, and he returned to Eaton Rapids to await the result of defendant's investigations. When it became evident that Kittredge, in order to purchase, would have to apply this Minneapolis property towards the purchase price, defendant told plaintiff that he could not afford to pay him all over $8,000, and take the Min

neapolis property at Kittredge's valuation. That thereupon plaintiff suggested to defendant that the matter could be arranged so as to meet the overvaluation on the part of Kittredge, by defendant taking out the accounts, amouning to $2,800, and valued at from $2,000 to $2,500; also the book known as "Prof. Hennequin's Book," valued at $500, and one of Prof. Vaughn's, valued at $400, and blank-books, and some stock, valued at $300 or $400,-amounting in all to over $3,000. That the defendant, immediately after Kittredge had returned to Eaton Rapids, wrote to parties in Minneapolis in reference to the value of the real estate there owned by Kittredge; and a few days after, and on the 27th of July, 1883, he received an answer to his inquiries; and on July 29th a new contract was entered into between the defendant and plaintiff, in which it was agreed that, if plaintiff could induce Kittredge to buy the printing establishment after the defendant took out the accounts, books, etc., the defendant would take in part payment therefor the Minneapolis property at a valuation of $4,000, and pay the plaintiff $1,000 as his commission. That Hamilton immediately entered into correspondence with Kittredge, and in the course of two weeks or thereabouts he induced Kittredge to again come to Ann Arbor, and consider the new proposition of the defendant. That the sale was finally made through the efforts of the plaintiff on the terms above stated, to-wit, Kittredge to pay $1,500 in cash, put in the Minneapolis real estate at $4,000, and give a mortgage to the defendant on the property purchased for $3,500, making in all $9,000. That the defendant took out the property above mentioned, valued at over $3,000. That shortly after the sale plaintiff saw defendant, and requested payment of $1,000 under the contract; and defendant declined to pay him, and Hamilton at once brought suit. The case was first tried before Judge JOSLIN, in the Washtenaw circuit court, and the plaintiff obtained a verdict. A new trial was granted, and Judge JENNISON heard the case, and the jury rendered a verdict for plaintiff for $1,000. Judgment was entered thereon. This judgment was reversed by this court, and is reported in 59 Mich. 253, 26 N. W. Rep. 486.

It appears from the record of that case that plaintiff's claim on the former trials was that defendant agreed to give plaintiff all that he should receive beyond $8,000, and that the property was sold for the sum of $9,000; that on the final arrangement a sale was made for a consideration which included some lands in Minnesota, which were called by the purchaser as worth $4,000, which at that rate would bring the whole price up to $9,000. The parties were directly at issue upon the fact of any agency of plaintiff by defendant's employment in this sale, as well as to several of the more important facts bearing on the merits of the case. The action was on the common counts. No bill of particulars was presented in that record. From the testimony on both sides, it appeared on the former record that if there was any employment at all it was for so much as exceeded $8,000 on the sale. And this court held, a very large part of the testimony consisting of the opinion of witnesses as to what commission and compensation would be proper in such a case to a land-broker, that all of this was erroneously admitted. This court further said, in the absence of a bill of particulars: "We are unable to say whether the claim set out was or was not one which should have been declared on specially, but it is claimed that damages for preventing the plaintiff from carrying out the express contract could not be recovered under the common counts. And we do not see on what basis there could be any estimate of the value of services in inducing the purchaser, with whom the defendant made his own terms, which could be recovered for on the quantum meruit; and this part of the case, and the instructions allowing such an inquiry, must be regarded as involving errors. After reversal in this court the case was again tried at the October term, 1887, in the circuit court, and a verdict of $1,280 rendered in favor of the plaintiff. Judgment was entered thereon, and the defendant brings the case to this court by writ of error.

At the close of the testimony defendant's counsel asked the court to charge the jury: (1) The plaintiff cannot recover under the pleadings and evidence in this case. (2) The plaintiff cannot recover in this case on the agreement for a cash sale made July 18, 1883. (3) If the jury shall find that an agreement was made between the parties after July 18, 1883, and that such agreement was that plaintiff should undertake to effect a sale of the property in question, and defendant to pay him all that should be realized on such sale over and above $8,000, then the plaintiff cannot recover in this action. (4) If the jury believe that the plaintiff was authorized to sell the property in question according to the agreement of 18th of July, 1883, and that plaintiff was prevented from making such sale, and that agreement was terminated by the act of the defendant, plaintiff cannot recover in this action. (5) If the jury find that the alleged promise to pay $1,000, relied on as plaintiff's ground of recovery, was in any way dependent upon the sale of the property in question, the plaintiff cannot recover in the present action. (6) If the jury find that, in order to fix the plaintiff's claimed compensation at $1,000, a sale of the property in question was to be consummated, the plaintiff cannot recover in this action. (7) If the jury find that plaintiff was instrumental in making the sale, and may have rendered valuable services for the defendant, still this fact will not entitle him to recover in this action. He must recover, if at all, a fixed compensation of $1,000. (8) That under the bill of particulars in this cause, and the testimony given in the trial, the plaintiff cannot recover. (9) This case having been twice in this court, and having been carried to the supreme court upon the claim upon the part of the plaintiff that if there was any employment at all it was for so much as exceeded $8,000 on the sale, plaintiff cannot now change his cause of action, and recover upon a new and different contract, wherein he was to receive a fixed compensation of $1,000 cash for the performance of certain services. The court refused to give these requests in charge to the jury, except as covered by the general charge, and upon such refusal the defendant assigns error. The court instructed the jury that there were three principal questions for the jury to pass upon in arriving at a verdict in this case: (1) Was such a contract made as plaintiff claims? (2) If made, was it revoked by the defendant? (3) If not, did the efforts on the part of the plaintiff, in pursuance of the contract, result in effecting a sale between defendant and Kittredge? And it was upon this theory that the case was submitted to the jury for their consideration. The bill of particulars upon which the plaintiff relies for recovery is as follows: "To services in July and August, 1883, in procuring a sale of the Register property to Kittredge for said defendant, one thousand dollars." To this bill of particulars was attached a notice to the defendant that "the following is the bill of particulars of the plaintiff's demand in this cause, and for the recovery of which this action is brought." On the trial of the case it was admitted by plaintiff's attorney that the foregoing was the bill of particulars served in the cause before the first trial.

From the former record presented to this court, it appears that the claim then made by the plaintiff was that he acted as agent for the defendant in the sale of this property under an agreement with him that he (plaintiff) should have as compensation all he could obtain for it over $8,000, and that he might offer the property for sale at $9,000. That in pursuance of this agreement he procured one Kittredge, who was at Eaton Rapids, to come to Ann Arbor, and look the property over. That Kittredge came; when it was learned that Kittredge desired, if he took the property at $8,000, to turn out certain real estate in Minneapolis in exchange, which he valued at $4,000. That defendant desired time to investigate the value of the Minneapolis property, which was granted by Kittredge. Thereupon defendant told the plaintiff he could not afford to take the Minneapolis property, and pay him (plaintiff) $1,000; when plaintiff advised him to make another agreement with Kittredge, and v.40N.w.no.1-2