The prayer is that said contract and conveyance be adjudged void; that said notes be canceled and said money be ordered returned; that the money expended by plaintiffs upon said property be found to be a lien upon said property and the amount thereof be ascertained on an account taken, and for all proper relief.

Defendant by answer admits the transaction, but denies the fraud. He states that long before said transaction, or any of said negotiations, said Thomas had been retained as a broker by him to make sales of said property, all of which was known to plaintiffs; that the defendant had been interested in said property only about one year, had been upon the same only a few times, and gave plaintiff's all the information he had concerning all the wells drilled on said lease in response to plaintiffs' inquiries. Defendant expressly denies that he stated that the central area of said property was then undrilled, but that on the contrary he stated that the same had been drilled, and that one of the wells drilled thereon had the reputation of producing 8,000 barrels of oil per day; defendant further states that he furnished plaintiffs with the pipe line statement showing the oil produced from said wells in July and August, 1902, and all of which facts were known to plaintiffs at the time of said sale. All allegations of the petition not admitted by the answer are denied. Plaintiffs by reply deny all the affirmative allegations of the answer.

The case was heard and submitted here upon these pleadings and the evidence. A transcript of the testimony given at the trial in the common pleas court was used here.

The objections made there appear in this transcript. We find no rulings there made on the evidence that we are very solicitous to charge, and counsel have argued no questions arising thereon which they deem important. We abide therefore by the rulings made below.

From the evidence it appears that Harry Jones, a resident of Cleveland, one of the plaintiffs here, prior to August, 1902, formed the purpose to associate himself with other persons, then undetermined by him, to purchase oil properties, organize a corporation to own and operate the same, and to reap a joint profit

for himself and associates by conveying the property 30 purchased to said corporation and selling the stock of said corporation to an amount sufficient to pay the cost price of the property and the amount of profit which the promoters might require. At this time Jones was without experience in or knowledge of the oil business or the market value of oil-producing properties. Jones made known his purposes and intentions to A. J. Thomas, of Findlay, who at that time was experienced in the oil business and was acquainted with the market values of Ohio oil-producing properties. An arrangement was entered into between Jones and Thomas whereby Thomas undertook to find, if possible, one or more oil properties that could be purchased and would be suitable for the proposed enterprise. At this time Thomas contracted to associate himself with Jones in the general plan. After this arrangement was made, Thomas learned that the defendant's property was for sale, and upon inquiry of Draper was informed that the price was $60,000. On or about September 16, 1902, Jones, together with one Wilson, who as an expert was visiting the property in behalf of some intending investor or investors other than himself, met Thomas by arrangement and they went to the defendant's lease. Here they met one Hendricks, who at that time was with defendant a joint owner of this property. Wilson informed Hendricks that they had come to look over the property. Hendricks, in his testimony on cross-examination. (Transcript, p. 112), details what he said as follows:

"Q. And he, Wilson, asked you some questions about the wells? A. Yes, sir.

"Q.

And about the production? A. Yes, sir. "Q. And what do you say you told him? A. I told him we were running about two one hundred barrel tanks a day then." The fourteenth question after this, in the same cross-examination of the same witness is as follows:

"Q. Mr. Hendricks, you say that day, the day that Wilson was there, in the presence of Mr. Thomas and Mr. Jones, that you were asked what that lease was doing at that time? A. No, sir.

"Q. Was you not? A. No, sir. "Q.

Did you make any statement that day as to what that lease was doing? A. No, sir.

"Q. Did you not tell some one then that you was running two hundred barrel tanks a day? A. I said that I had run that.

"Q. What was the question put to you when you made that answer? A. They asked me what it was doing, and I told them I had run two hundred barrel tanks a day.

"Q. Did you not tell them that you were now running that then? A. No, sir; I did not."

At about the time of this conversation, Draper arrived at the lease and Hendricks, to use his language, "turned the visitors. over to him." When Draper met the parties he was inquired of as to the production. He exhibited to the parties a pipe line statement, the extent of which as to time is in dispute. Draper says the statement covered all the time from October, 1901, to August 14, 1902. Jones disputes this and says the statement covered the first half of August, 1902, only. It is argued that Draper that day by wire ordered a statement covering the month of August, 1902, sent to Wilson at Findlay, because he wanted to base his report upon a full month's statement, and Draper testifies that he, Wilson, wanted to make as good a showing as possible so that the deal would go through. (See transcript, p. 119). The records of the pipe line company do not show that Draper had any such statement as he testifies he had, but, on the contrary, show that the general statement sent him terminated. July 31, 1902, and not on date of August 14, 1902. The records further show that Draper ordered and there was sent him a statement for the first half of August, 1902, and that on September 4, 1902, there was sent to him a statement for the whole month of August, 1902. The evidence (deposition of R. L. Bates) further shows that if a large month were wanted, and if defendant had the statement he says he had, that the largest month's production would be for the month beginning July 15, 1903, and ending with the last item in the August half-monthly statement.

It will be noted that after August 14 there were eight tanks only in August, whereas there were fifteen tanks run from July 15 until the end of July. Moreover the distance between the water-marks in the paper still intact is 11 1-4 inches, while the distance between the marks on the upper part of the paper and

upon that on which the August statement appears is only 9 7-8 inches. If the two parts were part of the same piece of paper, the distance between the marks would be the same. Since Mr. Draper's explanation does not explain why the month of August was embraced in a single statement to Wilson, since the records of the pipe line company are against his recollection of the facts, and since the physical appearance of the paper is also in dispute of his statement, it must be assumed and held that he is mistaken in his theory as to the extent of the statement he presented to Jones and Wilson on September 16, 1902. This leads to another inquiry. On that day, Draper had a statement for the entire month of August, 1902. It was sent him on September 4, 1902. He had run tickets also in his possession. He therefore knew what oil was produced in the month of August, yet he does not exhibit that statement. In the last half of August the lease averaged half a tank a day. In the first half of August the lease averaged one and one-half tanks per day, and some two days and some days three tanks were run. The first half of August was in line with what Hendricks had told the parties, the last half was not. Draper was there that day to see intending purchasers, yet he did not bring the last statement of production, nor did not exhibit it, but did bring another that was favorable to the property and its production. Afterward several other parties visited the lease. There were other parties who intended joining Jones in the purchase or intended to purchase stock in the company. Several of these testify that Draper made statements as to the production of the lease, stating it to be forty barrels per day or more. Draper denies that he made these statements. The average daily production of the lease in August, 1902, was 53 18-100 barrels; in September, 12 12-100; in October 6 56-100. During these months, at no time were all the wells equipped for pumping, and at no time were the equipped wells regularly pumped. At no time prior to November 8 did Thomas take any gauge of the wells. September 29, 1902, Jones took an option on the property which fixed the price a $60,000. Thomas acted as Jones' agent in the transaction. October 22, this option having expired by limitation, it was renewed and extended "for such a length of time as will enable (defendant) first party

to put the twelve wells in operation and first party agrees to put the wells in operation as soon as possible and to extend the time of the within option until said twelve wells are fully equipped and operating to the satisfaction of A. J. Thomas both as to the operation of said lease, its production and its title." October 28, Thomas took a statement signed by Jones certifying that he, Thomas, was not a member or stockholder in the purchasers' combine, nor in the corporation, but was at will an employe.

When Draper first entertained the proposition to sell, he told Thomas that there would be five per cent. commission for selling the lease. Thomas informed Jones of this fact, and Jones concluded to divide the commission among the purchasers. Jones says that Thomas stated that by the usage of the oil business, a commission was always paid. This Thomas does not deny. Draper says that he asked Jones whether he was interested in the commission and Jones said "No, settle that with Thomas." Thomas did not know of this statement, and Jones denies it. Draper did not see Jones on the lease after October 28, when for the first time Thomas became solely interested in the commission to be allowed. On October 28, Thomas stipulated with Jones that the commission on the sale should be paid to Thomas as compensation for his services in the deal. About November 1, 1902, Thomas, who before that time had looked after plaintiffs' property as manager, quit their service in that capacity, and on that date stipulated with Draper that upon the close of the deal then pending between plaintiffs and defendant, Thomas should receive (if the property was purchased at the price of $60,000) a commission of $6,500. There is no pretense in the case that any of the plaintiffs except Jones knew of any commission at all, and no claim that Jones knew of any commission except five per cent. and that fixed by the usage of the business and not by contract. November 8 Draper and Thomas were in Cleveland and the deal was then closed, the money paid and notes executed as pleaded.

It is fair to conclude from all the evidence that the property from the time of taking the first option until November 8 was at no time worth in the market to exceed $15,000. It is asserted by one or more witnesses that Draper represented that the central