The plaintiff claims, under the money counts, io recover a sum alleged to have been by him overpaid the defendants for an interest in a steamboat. He claims that he was induced to pay more than the contract price by the fraud of the defendants. He does not claim that he was defrauded in making the contract, but he alleges that he was defrauded in making a settlement of it. He does not, therefore, rescind the contract, but relies upon it to enable him to recover of the defendants the amount paid to them in excess of what, by the terms of the contract, they were entitled to receive.
In support of his cause, the plaintiff undertakes to show, that the bargain with the defendants was to sell him an interest in the *86boat at the price which the defendants actually paid, or were to pay, to other parties therefor ; or, in other words, at the rate that the boat actually “cost” the defendants; and that, by the misrepresentation of the defendants as to what the cost was, they received more. The defendants’ version of the transaction differs from this. They claim that a fair construction of it is this : that they agreed to sell, not at cost, but at a price fixed and certain, which was represented by them to be equivalent to the cost to them. And they deny any liability, because a representation, as to what an article cost them, made to induce a sale, is not an actionable representation, as declared in Bishop v. Small, 63 Maine, 12, and settled in the cases cited in that case; the doctrine being confined to a representation of what it cost the vendor, and not its cost to other persons. Manning v. Albee, 11 Allen, 520.
The margin between the respective positions of the parties was a narrow one, and the issue of fact to be decided was close. We are not convinced, however, that the jury erred.
Nor do we perceive any error in the summing up by the learned judge. On the contrary, his rulings appear to us to have been clear and sufficient, and exceedingly apposite to the facts in the case. The positions taken for the defendants were presented by the court to the jury with all the force they could legally bear. A sale at cost is a valid sale for whatever the cost may actually be, when correctly ascertained, although supposed to be, or represented to be, a different sum at the time of sale. And both parties are bound by that standard, unless the contract can be avoided for fraud or mutual mistake. That the price can be made certain, makes it certain. But a sale for a fixed price and definite consideration, binds the parties at such price, although the sum paid was supposed to be the cost price, when it was not. In the one case, the supposed “cost” merely induces a contract to be made. In the other, the real “cost” becomes a material part and condition of the contract itself.
The defendants were not injured by a refusal to give their requests. The explanations of the case had already been full. The idea underlying the first three requests seems to be this: that if the sale was to be at cost, and at the same time a price was named as *87the cost, and acceded to by the purchaser as such, the transaction was in effect a sale at what was called cost, and not a sale at actual and absolute cost. But this was an argument of fact for the jury, rather than a proposition of law to be passed upon by the court. In this state, tbe jury are to ascertain the words used by the parties, and the meaning of them. Had the court followed the requests, it would have been, in some degree, a usurpation of the province of the jury.
The fourth request does not bear upon the case. The plaintiff complains of no fraud practiced on him, “in making the contract.” He only complains of a fraud in the settlement of the contract. But the request, as far as applicable to the issue, had already been given.
We do not distinguish tbis ease, in its essential features, from that of Lord v. French, 61 Maine, 420.
Exceptions and motion overruled.
Appleton, C. J., Walton, Barrows, Daneorth and Virgin, JJ., concurred.