By the Court,
DixoN, 0. J.
The circuit court erred in allowing the statement of the plaintiff in error, made at New York, as to the laying out of the alleged highway, to be given in evidence to the jury; and likewise in permitting the defendant in error to go into proof of the damage sustained in consequence of such highway having been laid out and opened. It is not disputed that there was, at the time of the execution of the contract, some kind, of an understanding or attempted arrangement between the plaintiff in error and the supervisors of the town and others, with regard to the laying out and opening of the road in question. The contract itself recognizes and admits its existence; and by it, the right of the plaintiff in error to perfect and carry it out at any time prior to the execution and delivery of the deed, is expressly reserved. It reads thus: “It is also understood and agreed that the said premises are to be conveyed as aforesaid, subject to an understanding between the said Alfred L. Castleman and certain parties* in relation to the road *538now running through said premises being made a public highway; but should said road not be declared a public road by the highway commissioners prior to the execution of the deed from the said Cattleman to the said Griffin, for said premises, the said Griffin is to have the right to object or consent as he pleases, to said road being made a public road, unencumbered by said understanding.” This was a substantial reservation of power in the plaintiff in error to complete the negotiation, and to cause the road to be made public, before the deed was executed according to the terms of the contract. If it was so completed and the road made public, the defendant was to have no right of objection or consent; but if not, then he was to have the privilege of doing either, as he pleased. This being the condition of things, it is manifest that it was wholly immaterial what the plaintiff in error said, at the time the parties met in New York for the purpose of executing and delivering the deed, in regard to the understanding having been carried into effect and the road made public. According to the stipulations of the contract, it was a matter of total indifference to the defendant whether the understanding had been perfected and the road made public, or whether they had not. In either case, he was equally bound by his agreement, and obliged to accept a delivery of the deed. The statements of the plaintiff, therefore, assuming them to have been falsely made as claimed by the defendant, did not amount to a fraud in law. They did not affect or vary the legal rights or responsibilities of the defendant. Such statements, to constitute a legal fraud, must not only be false, but must operate injuriously to the party to whom they are made. Such was not the operation here. No illegal or inequitable advantage was taken of the defendant by means of them. See Ableman vs. Roth and others, [12 Wis., 81], and authorities there cited.
These reasons apply with equal force to the objections which were taken to the evidence of the damages alleged to have been sustained by the defendant on account of the road having been laid out. The plaintiff certainly cannot be made liable in damages for acts which he was authorized by the contract to perform.
*539The position of the counsel for the defendant in error, that the testimony thus improperly received was quently withdrawn from the consideration of the jury, is not sustained by the record. It is true that the judge, in his instructions to the jury, was silent upon the subjects of this testimony; but such silence was by no means equivalent to a positive direction to them to disregard it. Without such direction, the inference must be that they considered and were influenced by it; and even where they are so directed, the case will still be unrelieved from error, if it appears that their verdict was in any way affected by the testimony improperly. State Bank of Wisconsin vs. Dutton, 11 Wis., 371; Remington vs. Bailey [ante 332]. The objection that the bill of exceptions was not filed with the clerk of the court below within ten days after it was' settled and signed, as required by Bule 14, cannot be made here. The remedy of the defendant in error was by a motion in that court to strike it from the files for irregularity. Upon such motion, the excuse of the plaintiff could have been heard, and leave given him, in a proper case, to file it upon such terms as the court might deem just.
Judgment reversed, and a new trial awarded.