1. The first question which arises in this case is, as to the construction of the provision in the contract of July 15, 1863, by which the defendants agree that “if Pease shall find he can effect a settlement with said squatters, and shall wish for said $5000, or any part thereof, for that purpose, Brown and others are to pay him said sum of $5000, or such part thereof as he may desire, within thirty days after notice from Pease.” We have no doubt that the construction of this clause adopted at the trial in the superior court was correct. It is not an undertaking to pay $5000 absolutely, but only such part of it as the plaintiff desired and needed for the purpose of effecting a settlement with squatters. Provision is made in a subsequent part of the contract for the payment of such part of the $5000 as is not needed to extinguish the claims of squatters. The *300contract also contains provisions, by the fair construction of which the defendants were to pay the plaintiff in place of the $5000 a sum not exceeding $2000 for the purpose of ejecting the squatters by legal proceedings, in case the plaintiff found it impracticable to effect a settlement with them; showing that the parties did not understand, as now claimed by the plaintiff, that the $5000 was to be paid absolutely upon his request. The exceptions of the plaintiff therefore cannot be sustained.
2. A question of more difficulty arises upon the construction of the agreement made January 16, 1864. This is a modification of the original agreement, and contains the following provision : “ This modification of the agreement is made with the understanding that said Abbotts and Brown are to pay to Pease the sum of $1500 on said contract within sixty days hereof, according to the terms of their promissory note of even date herewith, and also the further sum of $1000, if Pease shall require, within sixty days from this date, for the purpose of settling with said squatters, provided Pease shall give to either of said parties thirty days’ notice of his requiring the same.” At the trial, the presiding judge ruled that this sum of $1500 was paid as the consideration for said modification, and that it was not to be applied by the plaintiff to the extinguishment of squatters’ claims, nor accounted for by him as a part of the said sum of $5000. We are unable to concur in this construction of the agreement. There is nothing in the terms of the modification which ■ indicates that this sum of $1500 was to be received by the plaintiff to his own use, and not as a payment under the contract. It is not stated to be the consideration of the new agreement. On the contrary, the agreement provides that it is to be paid “ on said contract.” These words necessarily refer to the contract of July 1863 as modified by this agreement. There is no other contract to which they can refer, and we think they are decisive against the construction claimed by the plaintiff. This sum of $1500 thus paid on said contract must be applied towards the sum of $5000, or such part thereof as was needed to settle with the squatters. There is no other payment required by the contract, to which it can apply. We are there*301fore of opinion that the plaintiff is bound to account for this sum as a part of the money paid to him for the purpose of extinguishing the claims of squatters. Upon the evidence at the trial, it appeared that, if he was charged with this sum, he has been more than paid for all sums needed for this purpose, and therefore the court should have instructed the jury, as requested by the defendants, that he was not entitled to recover anything under the first count in his declaration. These views render the other exceptions taken at the trial immaterial.
Defendants’ exceptions sustained.
At the new trial in the superior court, before Brigham, C. J., after this decision, “ the only controversy between the parties was, whether the plaintiff could claim, for the purpose of settling with squatters, anything beyond what had already been paid to him for that purpose, which it was agreed was the sum of $2442.85.” It was further agreed that the plaintiff had paid $800 to Waggy and $850 to King, and no more; but he contended that he was entitled to be allowed $1000 more, on account of an oral agreement, made between him and Waggy, in their negotiations, for the purchase by him from Waggy, for that sum, of a lot of one hundred acres outside of the tract of four hundred and seventy acres. The other material facts are stated in the opinion. The judge instructed the jury that, “if the consideration of Waggy’s relinquishing his squatter’s title was $800, that sum was all which the plaintiff could properly call upon the defendants to pay under the contract, notwithstanding Waggy’s agreement to extinguish his squatter’s title for $800 was coupled with and dependent upon the plaintiff’s agreement to purchase other land of Waggy, not included in said tract, for the sum of $1000.” The verdict was for the defendants; and the plaintiff alleged exceptions, which were argued in March 1871 by the same counsel.
Morton, J.When this case was before the court at a former term, it was decided that the plaintiff was entitled, under his contract, to demand and receive of the defendants only so much of the $5000 named in the contract as he found necessary for the settlement of squatters' claims.
*302At this trial, it appeared that the plaintiff had received from the defendants, for the purpose of settling with squatters, the sum of $2442.85, and that he had paid the sum of $1650, namely, $850 to King, and $800 to Waggy. He testified that in August 1863 he settled with Waggy, paid him $800, and received a quitclaim deed of his interest in the four hundred and seventy acre tract described in the contract. He also testified that at the same time, as an inducement to Waggy to give the quitclaim deed, he orally promised to purchase of Waggy a lot of land wholly outside of the four hundred and seventy acre tract, containing a hundred acres, for one thousand dollars, to be paid within a short time. This money has never been paid, and nothing has been “ done by the plaintiff or Waggy in carrying this agreement into effect.” The only question now before us is, whether the plaintiff is entitled to recover this sum of one thousand dollars.
The presiding judge ruled that upon the evidence the plaintiff was not entitled to recover it, and we are of opinion ihat this ruling was correct. The plaintiff has not paid the amount, and it does not appear that he is under any legal liability to pay it. But if he is, we do not think he could recover it of the defendants. By the contract, he was made their agent, with authority to settle the claims of squatters, and to call upon them for such sums as he needed for that purpose, not exceeding $5000. They were to pay him such sums as were needed to extinguish the claims of squatters. The contract with Waggy to purchase a distinct parcel of land was not fairly within the scope of his authority, and was not binding on the defendants. There is no hardship in requiring the plaintiff, before he entered into an agreement of this character, not contemplated by his contract with the defendants, to consult with and take the instructions of his principals. Not having done so, and the act being in excess of his authority under the contract, he cannot recover from the defendants the amount he agreed to pay for the land.
Exceptions overruled.
*303The second case was an action of tort, with an alternative count in contract, brought by the defendants in the previous case against the plaintiff therein. Writ dated June 22,1869. The declaration cpntained three counts, alleged to be for the same cause of action.
The first count alleged that on July 15,1863, the parties entered into the written agreement or indenture of that date, the material parts of which are quoted in the report of the other case; that the plaintiffs were unacquainted with lands in West Virginia, and particularly with the tract of four hundred and seventy acres referred to in the agreement; but that the defendant was well acquainted with said tract, and its minerals and its value, and with other mineral lands in that region; and that he induced them to enter into the agreement by false representations concerning said tract and its minerals and value, and said other mineral lands, which representations the count alleged in detail; that on July 22, 1863, they paid him $200, and on September 26,1863, $1000, on January 16, 1864, gave. him their promissory note for $1500 payable in sixty days, which was paid at maturity, and on September 1, 1863, gave him an acceptance of Abiel Abbott in his favor in the sum of $400, upon which they paid him certain amounts; that “ said acceptance and all of said sums were so paid under and in consequence of the indenture obtained as aforesaid, and because the defendant assured the plaintiffs that said sums, draft, note and acceptance were needed, and were to be used, to extinguish the claims aforesaid of said squatters, whereas in fact said sums were not so needed, and were not so used, but were misappropriated by the defendant to his own use ; ” and that, “ in consequence of said misrepresentations of the defendant, they were and have been subjected to large expenses, and have devoted much time in examining said four hundred and seventy acre tract, and having one of their number, to wit, said William A. Abbott, go to West Virginia for that purpose; the whole amount claimed by the plaintiffs as damages under this count being $5000, with interest thereon from aforesaid dates when paid to the defendant.”
*304The second count, also in tort, was as follows: “And the plaintiffs say the defendant has converted to his own use 03500 of current money, the property of the plaintiffs; under this count, the plaintiffs will claim the same money described in the first count.”
In the third count, which was in contract, the plaintiffs alleged the making of the original written agreement or indenture, and the payment of moneys and an acceptance to the defendant, as alleged in the first count; and alleged “ that said acceptance and said several sums were paid and given to the defendant under said agreement and indenture; and that the plaintiffs were induced to pay and give the defendant said sums and acceptance in consequence of the false representations and statements fully set forth in said first count; and the plaintiffs claim said several sums and amounts as moneys had and received by the defendant to the plaintiffs’ use, and moneys paid by the plaintiffs to the defendant, with interest thereon from said several dates of payment.”
This action was tried in the superior court, before Brigham, C. J., at the same time with the second trial of the action of this defendant against these plaintiffs.
At the trial, the plaintiffs gave notice to the defendant that they should “ not claim to recover anything from said Pease on account of, any alleged statements of said Pease, touching the value or quality or cost of the four hundred and seventy acre tract, or the ores, minerals and coal alleged to have been found thereon.” The defendant thereupon asked the judge to rule that the declaration did not set forth any legal cause of action ; but he declined so to rule.
In reference to extinguishing the claims of squatters, “ it was agreed by the parties that the whole sum the defendant bad received for that purpose’ (in the language of the original indenture) was $2442.85; that he had actually paid to squatters $1650, namely, $800 paid to Waggy August 10, 1863, and $850 paid to King April 26, 1865, which was more than Pease had received for ‘that purpose’ up to January 16, 1864; that on January 16, 1864, the plaintiffs gave the defendant their *305promissory note for $1500 on sixty days, which was paid at maturity and constitutes a part of said sum of $2442.85, and on the same day the modification of the original agreement was made ; and the plaintiffs contended that the defendant induced them to make this note by false and fraudulent representations,” and upon this issue they introduced the deposition of William A. Abbott, one of their number, portions of whose testimony were as follows:
“ About the time the original contract was made, Pease said he thought the squatters could be settled with for some one, two or three thousand dollars, but could better tell after going there and seeing them ; that he would call for no more than he should ascertain would be needed; and that he would like $5000 put in the contract as a nominal sum, and as a limit fixing the extent which we should be liable to pay to extinguish the claims by compromise; and as it would be needful for him to go at once to West Virginia, we agreed to pay $200 within a few days, as is stipulated in the contract.” »
“ On January 16, 1864, at the time the modification of the contract was made, the note of $1500 was not given to Pease as the consideration for such modification, but was given because he said he should need this sum to settle with squatters. About the time the note became payable, Pease called at the office of John S. Abbott and myself, and asked me if the note would be paid, stating that he should need it to pay the squatters the money he had promised them. I replied that the note would be paid; and after this I did pay the note at its maturity.”
“ Pease was in our office and asked for more money to settle with squatters, John S. Abbott being present. I told him, in substance, that I could settle with the squatters for less than he had already received. He then, without making reply, left the office. As he was leaving, John S. Abbott stated to him that if he would satisfy us that more money than we had paid" him was actually needed to settle with the squatters, he should have it. To this no reply was made. The letter of Pease, dated June 11, 1864, with the draft accompanying it, was sub*306sequently brought to the office by a messenger.” This was the letter in which Pease requested these plaintiffs to accept his draft for $1500, and on which he relied, in his action against them, for evidence of notice and demand.
Abiel Abbott, another of the plaintiffs, testified “ that he could not swear that the defendant made any representations as to the purpose for which he desired the $1500 paid on said contract of January 16, 1864, but that he supposed it was to be paid in extinguishment of squatters’ claims.”
The defendant requested the judge to give the jury the following instructions: 1. “ If the jury believe, on the whole testimony, that the parties to the contract of January 16, 1864, believed that the sum of $1500 was paid with the impression, created by the phraseology of that contract or otherwise, that no part of the same was to be paid to the extinguishment of squatters’ claims, then no part of it can be recovered back.” 2. “ There is no evidence on which the plaintiffs can recover in this action.” 3. “ If at the time of the bringing of this suit money was due Pease on the contract beyond the $5000 which was to be paid to squatters, then Pease has the right to retain such sum, plus the sum named in the second count, although there was no personal liability under the contract to pay more than was needed to settle with the squatters.”
These requests were not complied with, except so far as appears from this statement of the instructions given: “ The plaintiffs, to recover in their action, must prove by preponderance of evidence that they were induced to make payments of money to the defendant by representations, made by him, that he had found that he could effect settlement with squatters, and required for that purpose the money paid to him, wdien in fact there were not any such squatters, or he had not found that he could effect settlement with them, or the moneys paid on his call and notice were not then or at all required for that purpose, the defendant having no right to call for more than was required for that purpose.”
The jury returned a general verdict for the plaintiffs, with damages in the sum of $1087.90; and the defendant alleged *307exceptions, which were argued at the same time with the exceptions taken by him on the second trial of the other case, and by the same counsel.
Morton, J.We are of opinion that none of the exceptions taken by the defendant can be sustained.
1. The plaintiffs’ declaration contains three counts, two in tort and one in contract, alleged to be for the same cause of action. Gen. Sts. c. 129, § 2. At the trial, the -plaintiffs gave notice that they should “ not claim to recover anything from said Pease on account of any alleged statements of said Pease touching the value or quality or cost of the four hundred and seventy acre tract, or the ores, minerals and coal alleged to have bedn found thereon.” The defendant thereupon asked the court to rule that the declaration did not set forth any legal cause of action. This the court correctly refused to do. If all the allegations referred to in the notice are stricken from the first count, •we think it still sets forth a legal cause of action. But this is not material, in this connection, because the third count, in contract, clearly sets forth a good cause of action, and the plaintiffs would be entitled to recover upon it if the allegations are proved. This exception therefore must be overruled.
2. The defendant asked the court to rule that there was no evidence to support the allegations of the declaration. This request was properly refused. The defendant contends that it does not sufficiently appear that the plaintiffs paid the money relying on the representations made; and that they have failed to show that the representations made were false. But William A. Abbott, one of the plaintiffs, testified that the payments were made by them because of representations made by Pease that he needed the money to extinguish squatters’ claims; and the facts admitted show that the whole amount received by Pease was not needed or used for that purpose. It is not within our province to judge of the weight or sufficiency of evidence. There was some evidence upon all the material allegations of the declaration, and the court rightly submitted it to the jury.
3. The defendant requested the court to instruct the jury that If they believed, on the whole testimony, “ that the parties to *308the contract of January 16,1864, believed that the sum of $1500 was paid with the impression, created by the phraseology of that contract or otherwise, that no part of the same was to be paid to the extinguishment of squatters’ claims, then no part of can be recovered back.” The essential question involved in this request is, whether the plaintiffs paid the $1500 for the purpose of extinguishing the claims of squatters. This question the court submitted to the jury under proper instructions. Under these instructions, the jury must have found that the plaintiffs made payments to the defendant for the purpose of extinguishing such claims, and were induced to do so by his representations that such payments were required by him for that purpose. These instructions were adapted to the evidence, and sufficient; and no exception lies to the refusal of the court to adopt the language of the prayer.
4. The defendant also requested the court to instruct the jury that, “if, at the time of the bringing of this suit, money was due Pease on the contract beyond the $5000 which was to be paid to squatters, then Pease has the right to retain such sum, plus the sum named in the second count, although there was no personal liability under the contract to pay more than was needed to settle with the squatters.” The contract provides that the plaintiffs are not to incur any personal liability beyond the sums necessary to settle with squatters, but the defendant is to look to the land for security for all sums beyond that. No money beyond the sum needed to settle with squatters was due and payable to Pease under the contract. If by fraudulent mis- ■ epresentations he induced the plaintiffs to pay him more, the <aw will not allow him to retain it. His fraud .cannot enlarge the liability of the plaintiffs. The instruction requested was properly refused.
5. The defendant excepted to the admission of the testimony of Abiel Abbott to the effect that he supposed the $1500 was to be paid in extinguishment of squatters’ claims. We think this testimony was admissible. One of the issues which the plaintiffs were required to maintain was, that they were induced to pay this sum by false representations by Pease that he needed *309it for the purpose of settling with squatters, and that they did pay it for that purpose. The defendant contended that when the payment was made the plaintiffs did not understand that it was to be used for that purpose, but that it was paid to him as the consideration of the modification of the contract made January 16,1864. The statement of Abiel Abbott objected to was equivalent to a statement that he understood the payment made by him was for the purpose of settling with squatters, and bore directly on this issue.
There were several other questions raised in this bill of exceptions, but as the defendant’s counsel did not press them at the argument, we regard them as waived.
Exceptions overruled.