Estate, 160 Mich. 117 (125 N. W. 51), we cannot escape that responsibility. A careful consideration of the injuries from which this unfortunate little girl is suffering and will continue to suffer during the remainder of her life, leads us to the conclusion that the verdict is excessive. She has lost two fingers and a part of a third and the palm of the same hand is badly scarred from the burn. Her mother gives testimony to the effect that, during thunder storms, she is nervous and excitable. Her attending

physician testified that:

"So far as her nourishment is concerned and her general appearance of health for a child of eight years of age, I do not see anything especially abnormal."

Testifying as to her nervousness, he said:

"That it might produce a permanent nervousness; that is, for a number of years. Perhaps until the child is 15 or 16 years old. Then I would expect it to be somewhat better after she arrived at that age."

Such nervousness as the child now exhibits during a thunder storm is not very uncommon among children, or adults either, for that matter, and is, in our opinion, not a very serious matter.

The injury to the hand is, of course, serious and permanent, but, upon a careful review of the whole matter, we have concluded that unless plaintiff will remit all over $5,000, the judgment must be set aside and a new trial ordered. If she does so remit, it will stand affirmed.

MCALVAY, J., concurred with BROOKE, J.

HOOKER, J. We are of the opinion the judgment should be affirmed.

J.

MOORE and OSTRANDER, JJ., concurred with HOOKER,

PAINTER v. LEBANON LAND CO.

1. FRAUD-OPINION-REPRESENTATIONS AS TO FACT. In making a sale of land in Cuba to plaintiffs, the agent of defendant corporation stated that the company which he represented had sold 2,000 acres in the vicinity of the property conveyed, and that the purchasers were going there within six months or a year and make their permanent homes there. In fact no land had been sold to other settlers. Held, that the representations were not of mere matters of opinion, and that they were false and material.

2. PARTIES-FRAUD-JOINDER OF PLAINTIFFS.

A purchaser who subsequently united in the purchase of the land with the plaintiff to whom false representations were made, was properly joined as plaintiff in the action; it appearing that the statements influenced, and were intended to influence, him.

3. DAMAGES-FRAUDULENT REPRESENTATIONS.

While it was erroneous to charge the jury as to the measure of damages, that if they found for plaintiffs, the damages would consist of their joint expenditures, their payments on the land and compensation for their labor upon it, after deducting the actual value of the property, the error was not prej udicial under evidence which would justify a much larger award on the basis of the general rule of damages. (Modified

on rehearing-cf. headnote No. 6.)

4. SAME-GENERAL DAMAGES.

The measure of the plaintiffs' loss for fraud in the sale of land to them would be the difference between the value of the land as it was and land of the quality and condition represented.

5. AMENDMENT-TRIAL-DISCRETION.

An amendment of the declaration permitted at the trial without imposing terms, in relation to a matter which was trivial and could not have taken the defendant by surprise, was a proper exercise of the court's discretion.

ON REHEARING.

6. DAMAGES-ERRONEOUS INSTRUCTION-PREJUDICE.

Although plaintiffs' testimony on the question of damages was

uncontradicted, and would warrant the jury in finding as large or a larger verdict than they awarded, it is not sufficiently clear that they would have so found, and a new trial must be granted to determine the amount.

Error to Washtenaw; Kinne, J. Submitted June 17, 1910. (Docket No. 29.) Decided September 27, 1910. Reargued March 6, 1911. Former opinion modified March 13, 1911.

Case by Resom M. Painter and Samuel L. Wilgus against the Lebanon Land Company for fraud. A judg. ment for plaintiffs is reviewed by defendant on writ of Reversed.

error.

Robert E. Bunker and B. M. Thompson, for appellant.

M. J. Cavanaugh and Arthur Brown (E. R. Sunderland, of counsel), for appellees.

BROOKE, J. The action is trespass on the case in which plaintiffs recovered a judgment against defendant for $993.28.

The defendant was the owner of a tract of wild land in the island of Cuba, upwards of 9,000 acres in extent. It appears to have been its purpose to subdivide this tract into farms of 40 or 50 acres each, and to sell them to prospective settlers. Through one of its agents, it sold one of these farms to plaintiffs, who went to Cuba in March, 1906. Wilgus remained there until October, 1907, and Painter, with the exception of five months spent in Florida, remained there until April, 1908. Suit was commenced in July, 1908; plaintiffs claiming that they were induced to make the contract in question through false and fraudulent representations made by defendant through its agent. Paragraph 3 of the declaration is as follows:

"That on the date aforesaid the said defendant, by its duly authorized officers and agents, offered to sell to said plaintiffs a certain part or portion of said large tract of

land for the sum of $1,275, and then and there by its officers and agents represented to the plaintiffs that about one-half of a large tract of land, consisting of some 4,000 or 5,000 acres, had been sold by said defendant company in tracts or parcels of 40 or 50 acres each, to persons who were going to settle upon each and every parcel thereof, clear said lands, and make their homes thereon; that such concerted and united effort so to be made by each of said persons, to clear and settle upon each of said parcels of land, would greatly enhance the value of each and every parcel of said large tract of land, including the parcel of land so offered for sale by said defendant company to said plaintiffs."

The alleged false and fraudulent representations were made by one Beaman, who represented himself to be the general manager of the defendant. His authority to negotiate for the sale of the property cannot be questioned.

The plaintiffs are brothers-in-law, and it was their purpose to go together to Cuba and act in concert. This fact was known to Beaman, as is indicated by letters, written by him, addressed to both plaintiffs in Cuba before the contract was entered into. The representations were made by Beaman to plaintiff Wilgus only, at Belfontaine, Ohio, in February or March, 1906. Wilgus testified in part as follows:

"Q. What did he say as to how much of this land had been sold?

"A. I said to him, 'How much of this land have you sold?' He says: 'Here are 4,000 acres, made in tracts of 40 or 50 acres each. We have sold 2,000 acres of that land.' I says to him: 'How have you sold it? * Have you sold it to actual settlers or to speculators who are going to buy it and not go there and wait until people transfer it and then sell it at a price above and let other people make the improvements down there?" He says, We have sold that to actual settlers who are going on that land within six months or a year and settle on it and make it their permanent home.' Beaman says at that time that the settlers would commence to go there October 1, 1906; that there was going to be a large amount of people there. I would be the last of them.

་

* * **

"Q. There would be a settler upon each one of these parcels they had sold?

* * *

"A. He said they had sold these, and it was going to be settled upon within six months or a year, and they would make their permanent homes there. He claimed that in all 2,000 acres were sold to actual settlers, in parcels of 40 or 50 acres."

This information was communicated by Wilgus to Painter, his brother-in-law, and on March 20, 1906, they together set out from Ohio, for Cuba. Arrived in Havana, they were met by J. Warren James, secretary of defendant, who accompanied them to the land, 417 miles east of Havana. Both plaintiffs testify that they told James of the representations as to sales made by Beaman, and that James told them that they might rely implicitly upon what Beaman had said, though he personally did not know what sales Beaman had made. Plaintiffs examined the lands for several weeks and found them as represented, fertile wild lands. They finally selected a certain lot, and after considerable correspondence with Beaman entered into a contract to purchase it. They sent for their families and remained in Cuba upwards of 18 months, during which time they cleared about 15 acres of the land. Wilgus testifies that, had the representations made by Beaman been true, the land purchased by him and Painter would have been worth $4,000; that alone in the wilderness, as he and Painter were, it was utterly impossible to exist, and the land was worthless. Becoming convinced that no actual settlers would go upon the land, plaintiffs abandoned their property, returned to Ohio, and brought suit against defendant for damages.

It was not claimed by the defendant, upon the trial, that, at the time Beaman is said to have made the representations relied upon, the defendant had sold a single acre of ground to any person who either had or had not the intention of settling thereon. It is urged by defendant that, even if Beaman made the representations as claimed by plaintiffs, said statements being concededly