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It has been well settled that evidence of what the property brought at auction is admissible, as having some tendency to prove value. Smith v. Mitchell, 12 Mich. 191; Davis v. Zimmerman, 40 Id. 28; Dyer v. Rosenthal, 45 Id. 590 (8 N. W. Rep. 560); Campbell v. Woodworth, 20 N. Y. 499.

One further point made by defendants' counsel remains to be noticed. It is contended that the court was in error in its charge as to the burden of proof. The court instructed the jury.

"The plaintiff has made out his case by proving the sale. The burden of proof is upon him to make out a prima facie case of the sale. He did that by his testimony. Then the burden of proof shifts to the other side to prove that the sale was fraudulent and void, under the instructions I have given you. and which must be proven by a preponderance of evidence. Therefore you must find, in order to find this sale was void, that the defendants have a preponderance of evidence; that is, that the testimony is stronger that the sale was void than it is that it was valid."

It is an elementary principle that he who impugns a transaction as fraudulent which may or may not be so is not sustained by his own assertion alone in case he is disputed, but has the burden on him to make his allegation good by independent evidence; for he who alleges that a transaction was fraudulent must prove it. Darling v. Hurst, 39 Mich. 766; Bixby v. Carskaddon, 70 Iowa, 726 (29 N. W. Rep. 26); Rochester v. Sullivan, 11 Pac. Rep. 58.

It is evident, however, that the court went too far in his instruction when he told the jury that the plaintiff had made out his case by proving the sale to him of the goods, and that, while the burden of proof was upon him to make out a prima facie case of the sale, he had done this by his testimony. The purchaser here was the moving party. He claimed to have purchased the property

from Ettinger in good faith, and without notice that Ettinger was indebted to these attaching creditors, and that the attachments were wrongfully levied, and seeks to recover the value; but the manner of payment might have influence upon the jury in determining whether the purchase was made in good faith. Other facts were shown by the plaintiff's testimony which might also have weight with the jury in determining the bona fides of the purchase.

It appeared that the plaintiff was living at that time in another state. His business was that of a physician, and he had no acquaintance with the boot and shoe trade. All he knew of the stock was from an examination of the inventory which Ettinger had made, except as he compared the prices in the inventory with the costmarks on some of the goods; but he does not claim to have gone over the stock to ascertain the correctness of the inventory, and says that the reason he did not do so was his confidence in Ettinger. He gave his notes for $3,023.91, due in one, one and a half, and two years, except the $800 which he held against Ettinger and surrendered, yet on the trial all that was claimed as the value of the goods was $2,500. It appears, therefore, if the plaintiff's testimony is true that he purchased in good faith, that he was giving his notes for something over $500 more than the value of the property purchased. Again, the relationship and surroundings of the parties was a matter for the consideration of the jury in determining the good faith of the purchase. These were circumstances which the court should have submitted to the jury in determining the question of plaintiff's good faith in the purchase, and that it was not made to hinder, delay, or defraud creditors. It was error for the court to assume in this instruction that the plaintiff had made a prima facie case by his own testimony.

For the errors pointed out the judgment must be set aside, with costs, and a new trial ordered.

The other Justices concurred.

EUGENE F. AVERILL V. MARY R. WOOD, ADMINISTRATRIX, ETC.

Fraudulent representations—Promissory note—Qualified indorsement -Ignorance of import-Release of right of action-Consideration-Signature obtained by fraud-Pleading -Declaration-Evidence-Charge to jury.

1. An arrangement by the receiver of a corporation to pay its outstanding note in lumber amounts to an acceptance of the note to the common understanding.

2. To hold that a man cannot be defrauded by false representations because he is presumed to know the law, which presumption is a violent one in most cases, is to place the ignorant and foolish, who are generally the victims of fraud, beyond the protection of the law. Hess v. Culver, 77 Mich. 598 (headnotes 1 and 3).

So held, where a plaintiff claimed to have been defrauded in the purchase of the note of an insolvent corporation by representations that its receiver had arranged to pay the note in lumber, which arrangement it was claimed the receiver had no power to make, for which reason the plaintiff had no right to to rely thereon.

3. Where, in a suit for damages for alleged fraudulent representations by which plaintiff was induced to purchase a note, the jury find that the fraud was committed as claimed, evidence that the defendant said he would guarantee that the note would be paid is admissible as a part of the transaction, if the jury find that such promise was made to aid in the fraud perpetrated on the plaintiff.

4. The law approves of settlements and compromises of disputed claims, and, when deliberately made, the parties are bound by them, and the law will not sanction any interference with them,

without the consent of the parties, except upon the ground of fraud or mistake.

5. The purchase of property of a wife, at the request of her husband, upon the condition that the husband would sign a release of all of his claims against the vendee, is a sufficient consideration for such release.

6. Where, in such a case, the husband was induced to execute such release by fraudulent representations that it was not binding, and would not be used against him, and his wife receives the entire benefits of the transaction, the husband is not estopped from repudiating the release for fraud because of the non-return of such benefits by the wife.

Error to Kent. (Grove, J.) Argued October 25, 1889. Decided December 28, 1889.

Case.

Defendant brings error. Affirmed. The facts are stated in the opinion.

Taggart, Wolcott & Ganson, for appellant, contended: 1. Fraud must be clearly proved; citing Powers v. O'Brien, 44 Mich. 317: Campau v. Lafferty, 50 Id. 114; Brown v. Dean, 52 Id. 267; and the facts constituting the fraud must be proved as set forth; citing Collins v. Jackson, 54 Mich. 186.

2. A receiver has no power to make contracts without the authority of a court, and all persons contracting with him are chargeable with knowledge of his functions and powers; citing High, Receivers (2d ed.), § 186.

3. Even though the question of fraud in the release was open on the trial below, the statement claimed to have been made by Donaldson, that this paper was not good because of lack of consideration, would at most be only an expression of a legal opinion, and, he not occupying any position of trust towards plaintiff, no charge of fraud could be based upon it; citing Cooley, Torts, 484, and cases cited; Upton v. Tribilcock, 91 U. S. 45; Starr v. Bennett, 5 Hill, 303; People v. Supervisors, 27 Cal. 656; Clem v. Railroad Co., 9 Ind. 488; Townsend v. Cowles, 31 Ala. 428; Steamboat Belfast v. Boon, 41 Id. 50. 4. Plaintiff is estopped from retaining the benefits of the settlement, and at the same time avoiding it on the alleged ground of irregularity and fraud; citing Craig v. Bradley, 26 Mich. 354; Dunks v. Fuller, 32 Id. 242; Crippen v. Hope, 38 Id. 344; Lumber Co. v. Gustin, 54 Id. 631.

Ward & Ward, for plaintiff, contended for the doctrine stated in the opinion.

MORSE, J. The plaintiff alleges that on November 18, 1887, he was induced to take of Isaac W. Wood, in payment of real estate sold to said Wood, two certain promissory notes, as follows:

"$500.00.

GRAND RAPIDS, MICH., Dec. 22, 1885. "Three months after date, for value received, the Newaygo Manufacturing Co. promise to pay to the order of Isaac W. Wood five hundred and no-100 dollars, at Old National Bank, Grand Rapids.

"No. 258.

NEWAYGO MANUFACTURING CO.,

"By A. J. DANIELS, Vice Prest. "Countersigned by G. H. HOBART, Treas."

Upon the back of said note are the following indorsements:

"Rec'd by bill rend. June 2, '86, two hundred fifteen and 17-100 dollars.

"Rec'd by statement rendered Nov. 14, '87, seventyeight and 83-100 dollars.

"Pay Eugene F. Averill without recourse.

"$600.00.

"ISAAC W. WOOD." SPARTA, MICH., Nov. 16, 1881. "Forty-five days after date I promise to pay to the order of Isaac W. Wood six hundred and no-100 dollars, at the First National Bank, Grand Rapids, value received, with interest at eight per cent. per annum.

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E. BRADFORD."

Upon the back of said last note was the following indorsement:

"Pay Eugene F. Averill without recourse.

"ISAAC W. WOOD."

That the said Wood then and there falsely and fraudulently represented and warranted that the note signed by Bradford was good and collectible for its face value, and interest from its date, and that there was due about $900 upon it, and that Bradford was pecuniarily responsible

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