stated in the contract. Nor can we say that defendant, after making the purchase of scrip, would have given the plaintiff an option to buy it back, only upon the condition that plaintiff would exert himself in persuading the commissioner to allow the land designated in the contract under it. This being so, the services of the plaintiff in procuring the location of the scrip desired became a condition precedent to a return of the scrip by the defendant to the plaintiff; and no such services having been proved, and none ever having been rendered, it would seem difficult to maintain the present suit, and I do not think it can properly be done.

There is no question, and I think there can be none, but that the title to the scrip passed to the defendant when he made his purchase, and his contract is executory, so far as he agreed to resell to the plaintiff; and when a promise rests upon two things to be performed for its consideration, and the party to whom the promise is made desires to enforce it, he can only do so after both things have been done. The action in this case is for a breach of the defendant's contract with plaintiff, and not for the value of the scrip. If there is no breach, there are no damages to be recovered; and if the failure to perform on the part of defendant is in consequence of the violation on the part of the plaintiff, then plaintiff must fail to recover. If the plaintiff's claim involves a question of fact about which there is testimony upon both sides, then the case should have gone to the jury.

Under the view I have taken of this case, and from the facts disclosed in the testimony, there was a question. as to what the plaintiff did do for the defendant before the said land department that should have been submitted to the jury, which was not done by the circuit judge. There may be a question whether the applications men

78 MICH.-25.

tioned in the contract were ever rejected or refused by the highest authority having jurisdiction in such matters; but suppose the decision of the Commissioner in the landoffice to be such authority, the plaintiff should have made his election at once what he wished to do, and have notified the defendant. I think a fair construction of the contract on this point required such election to have been made and notice to have been given within a very few days, at most. It was not given, however, for several months after the commissioner had announced his refusal to make the application. The delay was clearly unreasonable. It was of no consequence what the defendant had done with the scrip; he should have had an opportunity to have returned it, or replaced it by other like scrip, and this he did not have.

For the foregoing reasons I think the judge erred, and that the judgment should be reversed, and a new trial granted.

CHAMPLIN, MORSE, and CAMPBELL, JJ., concurred. LONG, J., did not sit.

OLIVER CHRISTMAS V. PETER FREI.

Contract-Receipt-Fraud-Parol evidence.

The main question in this case is held to be whether there was any evidence to go to the jury tending to show fraud in obtaining the contract or the receipt referred to in the opinion, which question is decided in the affirmative.

Error to Marquette. (Grant, J.) Argued October 29, 1889. Decided December 28, 1889.

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

F. O. Clark, for appellant, contended:

1. The fact that plaintiff had a different understanding of the contract, notwithstanding it was read and shown to him, will not show fraud in any sense; citing Adair v. Adair, 5 Mich. 204; Nye v. Van Husan, 6 Id. 329; Kulenkamp v. Groff, 71 Id. 675.

2. Parol evidence cannot be received to add to the terms of a written instrument; citing Sutherland v. Crane, Walk. Ch. 523; Adair v. Adair, and Kulenkamp v. Groff, supra; Skeels v. Starrett, 57 Id. 352; Cline v. Hubbard, 31 Id. 239.

3. Fraud cannot be presumed, but must be proved, the same as any other fact; citing Robert v. Morrin, 27 Mich. 308; and actual deception must be shown; citing Hamilton v. Billingsley, 37 Id. 107; and a verdict like the one at bar should be set aside; citing Campau v. Lafferty, 50 Id. 114, 117.

Mapes & Kinkade, for plaintiff, contended:

1. A parol agreement as to the consideration to be paid for a conveyance of land need not be in writing in order to be enforced after a conveyance has been made, and may be enforced then according to its terms, although the deed recites a different consideration; citing Nutting v. Dickinson, 8 Allen, 540; Price v. Sturgis, 44 Cal. 591; Tuthill v. Roberts, 22 Hun., 304; Babcock v. Read, 50 N. Y. Sup. Ct. 126; Miller v. Kendig, 55 Iowa, 174.

SHERWOOD, C. J. In the month of June, 1888, the plaintiff and defendant were the owners of an option for a lease on forty acres of land in Marquette county for mining explorations, each owning an undivided half interest therein. Some time after the parties had received said option the plaintiff assigned to the defendant an additional one-quarter interest. A treaty was had by the parties with a J. R. Case, with a view of selling Case their interest under said option. The plaintiff was to have an undivided one-fourth interest in the rights under the option, and defendant, and other parties with them, were to have the other three-fourths; they bearing

all the expense of exploring the property, and the mining and developing of the minerals found thereon, until the property should be sold.

After a short time all of the owners of the option gave to Case an option for the purchase of their interest for $15,000, which expired about June 26, and about this time Case telegraphed the defendant to go to Detroit to close a trade. Defendant sent for plaintiff, and they met at Mr. Moore's office. Mr. Moore was an attorney. Four others had become interested at that time with the parties in the original option, and all were anxious to sell at almost any price, except the plaintiff, and were willing to accept any price that defendant would take, when he met Case in Detroit, and take their pro rata share; and then and there, in Mr. Moore's office, the following agreement was drawn up and signed by the plaintiff:

"For and in consideration of the sum of one dollar, and other good and valuable considerations, to me in hand paid, the receipt whereof I hereby acknowledge, I hereby agree to sell, transfer, and set over to Peter F. Frei or his assigns, at any time within four days from this date, all my right, title, and interest whatsoever, of, in, and to a certain option for a mining lease, with blank lease attached, made and executed by the Iron Cliffs Company to Peter F. Frei and Oliver Cliche, for the north-east quarter of north-west quarter sec. one (1), T. 47 N., R. 25 W., Marquette county, Michigan, at and for the sum of three thousand dollars cash; and, if said money is paid to me within said four days in cash, I hereby promise and agree to make, execute, and deliver all necessary and proper papers to transfer my said interest in said option.

"Dated Marquette, June 26, 1888."

The plaintiff made his mark, not being able to either read or write, and in his testimony he says the instrument was never read to him; and he further testifies that the agreement was that, if Frei was compelled to take $12,000 or less on the trade, the plaintiff was to take

$3,000 for his interest, and if the property was sold for more than $12,000 he was to have one-fourth of whatever sum was received, and the defendant represented to him that such were the terms of the written contract.

Frei went to Detroit, obtained $15,000, and returned to Marquette, and, as claimed by the plaintiff, represented to him that he had made the sale for $12,000, and upon this representation obtained a receipt from the plaintiff, reading as follows:

"I hereby acknowledge the receipt from Peter F. Frei of the sum of three thousand dollars, mentioned as the purchase price herein provided for, and I do hereby release said Peter F. Frei from all liability to me on account of said option, and the lands described herein."

The plaintiff further claims that for some time he did. not learn of the true facts in the case, but, after he did, he at once brought this suit to recover the additional $750, to which he claims to be entitled, and of which he has been deprived by the fraud of the defendant.

Certain errors are claimed to have been made by the court in the admission of evidence objected to, and in submitting the case to the jury, but the main question. in the case is, was there any evidence to go to the jury tending to show fraud in obtaining the contract or the receipt from the plaintiff? These questions were submitted to the jury, and their verdict is against the defendant. I think the testimony, under the circumstances surrounding the obtaining of these two instruments, tended to show the fraud claimed, and was properly submitted to the jury; and if there is any error in the case it must be found in taking the testimony, or in the charge under which it was submitted to the jury. I have looked through the testimony, and examined each of the objections made and exceptions taken, and, had not the question of fraud been raised, undoubtedly several