It is contended that in this portion of the charge the court included all kinds of representations, even though made fraudulently and to enable the party making them to profit thereby. In this case plaintiff claimed that these representations were false and untrue, and so known to defendants; that they conspired together to defraud and deceive him, and succeeded in getting $5,000 by means of such fraud and deceit; and that they profited by the result of their fraudulent conduct. We think that there was sufficient evidence in the case upon that claim to go to the jury under proper instructions, and that this part of the charge does not conform with the construction which this court has given to the statute upon which the court relied.

In construing and applying this statute the court has said:

"The other point suggested has no support in the statute. The legal provision concerning the necessity of representations in writing to sustain an action upon favorable assurances concerning the character, conduct, ability, trade, or dealings of another person, was intended to reach cases where the plaintiff has dealt with and given credit to the person favorably mentioned, and done so on the faith of the assurances. The statute cannot apply to conspiracies or frauds, where the representation is made to enable the party making it to profit by it." Hess v. Culver, 77 Mich. 602 (43 N. W. 994, 6 L. R. A. 498, 18 Am. St. Rep. 421), affirmed and cited in Clark v. Hurd 79 Mich. 130 (44 N. W. 343).

As to whether in the case at bar defendants received a benefit or profit from the money plaintiff claims was gotten from him by fraud and deceit there can be little doubt. The money to the extent of $4,000 was at once applied to the payment of indebtedness, a part of which would appear to have been primarily their joint and individual obligations, and upon all of which they were. liable as indorsers, and also upon their bond. The case in this respect is distinguishable from the case of Getchell v. Dusenbury, 145 Mich. 197 (108 N. W. 723), where, at

the time suit was begun, the notes indorsed were not paid, and the plaintiff's money had not been used to take up the notes. The court was in error in charging the jury as above quoted. If these representations were false and fraudulent, and made for the purpose of defrauding plaintiff, and he was injured and defrauded thereby, he is entitled to recover his damages.

The court, considering the law which governed the case as given in the foregoing quotation, submitted to the jury but one of the fraudulent representations charged, namely, that defendant Luce represented that each of the defendants had invested $5,000 in that business. It is apparent, from what has already been said, that the jury should have been allowed to consider all of the claimed fraudulent statements upon which plaintiff relied, except as to the expectation of increased business and profits. The view of the court was that one only of the false representations claimed must have induced plaintiff to part with his money.

"It is not necessary that the false representations should have been the sole cause or even the principal inducement for the plaintiff to enter into the contract. If it exerted a material influence upon his mind, although it is only one of the several motives acting together which produced the result, the defendant would be liable." Smith on Fraud, p. 83.

See, also, McDonald v. Smith, 139 Mich. 218 (102 N. W. 668).

The evidence of plaintiff is not inconsistent with the theory that the representations were made of and concerning the corporation, even though the plaintiff did not know it was a corporation until October, 1907, and did not know of the increase of capital or that they charged one-half of the money they took from him to profit and loss. They were talking of the business, and this was the only business. It was known to all as Luce & Banks Company, and defendants insist they were selling him an interest in the corporation, and insist that all the representations and statements they made were with relation

to the corporation. They cannot complain if their testimony in that regard is accepted. Such evidence of plaintiff was admissible under the first count of his declaration. The second count was withdrawn at the trial.

It is contended that the court should have instructed for defendant, and that plaintiff cannot complain, because the result could not have been different. As we understand the case, this contention cannot be accepted for several reasons, which are obvious, the principal one of which is that there was abundant evidence on the part of the plaintiff to require its submission to the jury upon the disputed questions of fact.

The receipt and retention by the plaintiff of the check which defendants caused to be sent cannot operate to defeat his right of action, and we think that the amount bears simply on the measure of damages in case of recovery by plaintiff.

No further discussion is required. The judgment of the circuit court is reversed, and a new trial ordered.

BLAIR, C. J., and GRANT, MONTGOMERY, and BROOKE, JJ., concurred.

F. B. HOLMES & CO. v. CITY OF DETROIT.

A contract to furnish to the city of Detroit all the Portland cement that may be required by it and ordered by its department of public works during a given year, in consideration of a fixed price per barrel, entered into in pursuance of an advertisement for proposals fixing the amount at "5,000 barrels, more or less, as may be required by the department of public works," is mutual and binding.

2. SAME-BREACH-MUNICIPAL CORPORATIONS.

Such contract does not by its terms limit the amount of cement to 5,000 barrels, and the contractor is bound to furnish the entire amount required by the municipality.

Error to Wayne; Murphy, J. Submitted April 16, 1909. (Docket No. 42.) Decided September 21, 1909.

Assumpsit by F. B. Holmes & Company against the city of Detroit for goods sold and delivered. A judgment for plaintiff on a verdict directed by the court for less than the amount claimed is reviewed by plaintiff on writ of Affirmed.

error.

Gray & Gray, for appellant.

Walter Barlow (P. J. M. Hally, of counsel), for appellee.

MCALVAY, J. Plaintiff brought suit against defendant to recover for an amount claimed to be due for certain cement furnished by it under a certain agreement entered into between the parties. Defendant on January 11, 1906, through the department of public works, advertised for proposals for furnishing "5,000 barrels of Portland cement more or less as may be required by the department of public works from the date of contract to January 31, 1907,"

to be delivered in sacks at a warehouse within the control of the board in a designated locality. Plaintiff tendered a proposal in writing to furnish the cement in sacks "as per your advertisement of January 11, copy of which is hereto attached," at $1.69 per barrel, and to repurchase the sacks at 74 cents each. On February 15th following, the parties entered into a written contract, in which plaintiff agreed

** *

"To furnish all the * Portland cement that may be required by the city of Detroit and ordered by the department of public works in and during the year ending January 31, 1907, * said cement to be delivered in such quantities and at such times as the department of public works may direct. * The furnishing of said Portland cement to be according to the specifications and proposals hereunto attached and made a part of this contract."

*

The agreement of defendant in this contract was

"To pay the said first party the compensation in the manner provided, that is to say, the sum of one dollar and sixty-nine cents ($1.69) for each and every barrel of Portland cement delivered and satisfactory to the department of public works."

A bond was required and furnished by plaintiff to the defendant in the sum of $3,500, conditioned that if plaintiff,

"Who has executed the annexed contract for furnishing all the Portland cement that may be required and ordered by the department of public works in and during the year ending January 31, 1907, shall in all respects well and faithfully execute and perform," etc.

* * *

Plaintiff also furnished as required a bond to the people of the State of Michigan in the sum of $3,500, which recites that plaintiff has agreed

"To furnish all the Portland cement that may be required and ordered by the department of public works in and during the year ending with January 31, 1907."

The foregoing papers, together with the specifications