Dated this 14th day of February, 1917.

Thomas Smurthwaite,

Attorney for Defendants. Business Address:

Manistee, Michigan.

(d) Authorities Cited by Defendants-Brief of Defendants.-It is contended by the defendants that the agency of Mr. Long was special and his powers were to close the contract only, and not authorized to make any representations as to the land. In Iowa R. Land Co. v. Tehring, 126 Iowa 1, 101 N. W. 120, the averment as to agency was that he "was agent for the sale of their lands in Greene County, Iowa," and this was held to be insufficient to authorize proofs as to false representations or to bind the alleged principal thereby. The following cases are cited as upholding this principle of law: Kornemann v. Monahan, 24 Mich. 36; Grover & Baker v. S. M. Co. V. Polhemus, 34 Mich. 247; Hirshfield v. Waldron, 54 Mich. 649; Bond v. Pontiac & Pt. Austin R. R. Co., 62 Mich. 643-649; Bonnazza v. Joseph Schlitz Br. Co., 155 Mich. 36; Michigan Lumber Yard v. Blesch, 166 Mich. 470; Gutterson v. Dilley, et al. (Mich.), 167 N. W. 865.

In regard to ratification of the agent's acts, by receiving and acting upon the contract he was expressly authorized to make, it is the contention of defendants that a ratification is necessary only when an agent acts without authority, 31 Cyc. 1246, and has been applied and enforced in the following cases: Hurley v. Watson, 68 Mich. 531; Deffen-baugh v. Paper Mfg. Co., 120 Mich. 242; Upton v. Dennis, 133 Mich. 238; Brown v. Foster, 137 Mich. 35; Cowan v. Sargent Mfg. Co., 141 Mich. 87; Pittsburgh & Ohio Coal Co. v. Scully, 145 Mich. 229.

The court admitted alleged misrepresentations as to the crops the plaintiffs could raise upon the farm, upon the authority of Yanelli v. Littlejohn, 172 Mich. 91. Defendants contend that that case is not applicable to this case for the reason that in that case, the plaintiff was of foreign birth and had not been a farmer, while in this case plaintiff had been a farmer all his life. In Draft v. Hesselsweet, 194 Mich. 604, the purchaser was not a farmer and he claimed that the vendor or his agent represented "that the fruit on the farm would pay for it in the first year," and this court said that this "ground of complaint was not a representation of a present existing fact, and therefore must be regarded as a matter of opinion."

The same rule was applied in Dieterle v. Ann Arbor Paint Co., 143 Mich. 416; Getchell v. Dusenberg, 145 Mich. 197.

The plaintiff introduced in evidence, over the objection of defendant, a picture of what purported to be the farm, claimed to have been shown by defendant to plaintiff, defendant contending that the picture had never been seen by plaintiff before the trial.

"A purchaser cannot avail himself of representations in a circular, the contents of which were not known to him." 35 Cyc. 386; Landman v. Bloomer, 117 Ala. 312; 23 So. 75.

The plaintiffs affirmed the contract and demand damages for the alleged fraud, according to their counsel, while the plaintiffs by words and acts say, "we abandon the contract and the farm, we refuse to pay the mortgage." There cannot be both an abandonment of the contract and an affirmance thereof. If a party abandons it, his remedy is suit for rescission, he cannot rescind and affirm. 39 Cyc. 2000; Lowrie v. Gourlay, 112 Mich. 641.

The plaintiff lived on the farm and worked it for two seasons before bringing this suit. Defendants contend this was a waiver and cite 20 Cyc. 92: "If the defrauded party acquires knowledge of the fraud while the contract remains executory, and thereafter does any act in performance or affirmance of the contract, or exact performance from the other party, he thereby condones the fraud and waives his right of action." Craig v. Bradley, 26 Mich. 353; Wylie v. Gamble, 95 Mich. 564; Merril v. Wilson, 66 Mich. 232; Daily v. King, 79 Mich. 568; Parkyn v. Ford, 194 Mich. 184.

"Parties claiming to have been defrauded must show some diligence in their own behalf and must move promptly upon discovery of the fraud." Campau v. Lafferty, 50 Mich. 114.

Where the plaintiff examines the land before purchase no recovery can be had. Buxton v. Jones, 120 Mich. 522; Ransier v. Dwyer, 149 Mich. 487.

(e) Authorities Cited by Plaintiff-Brief for Plaintiff.-The authority of an agent to act for a principal is not determined solely by the principal's oral declarations as a witness as to the nature and extent of the agent's powers, but is also determined from the situation of the parties, their course of dealing, and by what was actually done.

2 C. J. (218, 576). A purchase of property by an agent with or without authority, is ordinarily ratified by the principal accepting and retaining the benefits of such purchase and also including the fraud and representations of the agent in the transaction as inducement to the purchase or acquisition. Walling v. Paulsen, 160 Mich. 392.

The admissibility of evidence in regard to the crops was not error, the difficulty was with the soil, not the elements.

"Bearing in mind that the declaration alleges that the land had been sold to plaintiff as good farming land, and that it would grow the numerous crops stated, the plaintiff sought to show the extent of the labor and effort made to produce crops, that enough could not be raised to support the family, and the necessity of going elsewhere to work, and the fact that the family had to be assisted by others. We think 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. While some of the testimony here complained of was rather remote and might have been properly excluded, we do not think that its reception constituted reversible error." Yarnelli v. Littlejohn, 172 Mich. 98, 99; Wegner v. Herkimer, 167 Mich. 587, 594.

It is no defense to an action for fraudulent representations made in the sale or exchange of land that the party defrauded may have seen and examined the lands. Starkweather v. Benjamin, 32 Mich. 305. Especially where the defrauded party is a stranger and is ignorant of real estate values in the vicinity where the lands are located. Stoney Creek Woolen Co. v. Swalley, 111 Mich. 321.

It is not necessary that the plaintiff repudiate the contract and bring his action for the fraud immediately upon discovering the false representations. The action at law does not depend upon the parties being placed in statu quo, and no special diligence is required of him in discovering the fraud or in presenting his action. Dayton v. Monroe, 47 Mich. 194; Wegner v. Herkimer, 167 Mich. 587, 593; Smith v. McDonald, 139 Mich. 225; Smith v. Werkheismer, 152 Mich. 177, 180; Yarnelli v. Littlejohn, 172 Mich. 91, 104; Hutchinson v. Westbrook, 191 Mich. 484, 488.

And in all contraversies not within the statute, waiver, if relied on, is a question of fact and not of law. Dayton v. Monroe, 47 Mich. 195; Wegner v. Herkimer, 167 Mich. 587.