Opinion by
Wickham, J.,The plaintiff, being the owner of a town lot, agreed to sell the same to the defendants, for the price of $900, of which sum $100 were practically paid in hand. The contract is evidenced by an agreement in writing, regular and absolute on its face, and duly executed by the parties.
In due time a deed for the property was tendered to the defendants, who refused to accept it, on the ground that they had been induced to enter into the agreement by certain representations made to them by the plaintiff, some of which were false and fraudulent. These alleged representations are contained in the affidavit of defense, and by reference arc made part of the defendants’ plea. Their tenor is as follows : that the defendants did not purchase in good faith, but to enable them to sell the lot, at an advance, as the plaintiff’s agents, to one Mrs. Fisher who owned adjoining property and who would not deal with Walton, but would pay $1,050 for the lot if she thought that Naley was after the same, as her stable and buggy house were built thereon to the extent of eight inches, and she was moreover averse to anyone buying and building on the lot, *147for the reason that the sale of her own property would be thereby materially injured ; that he, the plaintiff, would guarantee that the sale to Mrs. Fisher could be made for the price of $1,050, but if no sale were effected the article of agreement should be deemed void and the $100 paid back, and that the $150 to be gained by the sale to Mrs. Fisher, were to be divided in equal proportions between Walton, Caldwell, and Naley.
Caldwell was a real estate agent; Naley was a carpenter. The latter, according to Caldwell’s testimony, was to go to the lot and pretend to stake out a location for a house thereon, this of course being intended to alarm Mrs. Fisher and enable the three men to consummate the alleged conspiracy. No sale was made to the lady, and it is alleged that Walton’s representations, as to her willingness to buy, were untrue, she not wanting the lot at any price. The defendants therefore took the position that they were not liable on their written agreement, and were entitled to a return of the $100 they had paid thereon.
On the other hand the plaintiff denied that he had been guilty of any fraudulent or deceitful representations, and averred that the sale to the defendants was real, as it purported to be, and not made for the purpose of fooling Mrs. Fisher.
The evidence was conflicting, and the learned trial judge left the facts to the jury, reserving the question whether under the defendants’ own theory of the ease, even if sustained by the proofs, they had any legal defense. It certainly was their duty to satisfy the jury by clear, precise and indubitable evidence that their written contract did not mean what it said, or that it was being used against them for a fraudulent purpose. The jury found that the defendants were not deceived and defrauded, that the sale was bona fide and not as the defendants in effect contended, a mere sham. This ends the whole matter, and we need not consider whether the defense was sufficient in law.
The defendants’ complaint that the learned trial judge erred in using the word “sham,” in connection with the transaction between the parties, is unreasonable, in view of the theory of the defense that the sale was not genuine, but a pretended or sham one.
It is a mistake to assert, as is done in the fourth assignment of error, that the court nowhere in the charge called the attention of the jury to the false representations, alleged to have *148been made by tbe plaintiff, or to tbe alleged parol understanding that led to the agreement. The matters, so far as they appeared in the evidence, were sufficiently presented. Any juror of ordinary intelligence, hearing the evidence and the charge, would know precisely what was in issue. The case was simple and easily understood and, therefore, did not require a very formal and elaborate presentation.
We cannot say that undue prominence was given to the plaintiff’s evidence, nor that the evidence for the defense was slurred over, as is averred in the fifth and sixth assignments of error. The charge called attention, by name, to the witnesses on both sides, and in a general way to the really important testimony, and the jury were told to remember what was not then specially adverted to. If anything were not made as prominent as the defendants desired, it ought to have been called to the attention of the court at the time.
If the trial judges were compelled to weigh their utterances, regarding the evidence, in.the exquisitely balanced scales sometimes employed, by-ingenious counsel, to discover whether too much or too little has been said, few charges would stand the test. The only safe course would be to read the whole evidence word for word to the jury, or else carefully avoid mentioning it at all.
The specifications of error are overruled.
Judgment affirmed.