In the brief filed in behalf of the plaintiff counsel say: "From the line of argument before the jury, it is anticipated that the defendant may claim the agreement [as to the line] was void on account of fraud on the part of the plaintiff." They proceed to cite authorities bearing on the question of fraud, and to argue the point; the defendant's counsel do the same. It is inferred from these facts that the issue of fraud was submitted to the jury. If, as the plaintiff alleges, the evidence as to an agreement was wholly in his favor, still the motion to direct a verdict for him should not be granted if there was evidence from which impartial and reasonable men might fairly find that Dow was induced to make the agreement by the plaintiff's fraud.
If the plaintiff pointed out to Dow, as true boundaries in the line, objects that were not such in fact, and he knew that they were not, or did not know that they were, true boundaries, and, the matter not being equally within the knowledge of Dow, he was misled and induced to agree to the line thereby, the misrepresentations (being with reference to matters that were material to the agreement) would constitute fraud, of which Dow and those having his estate could avail themselves and avoid the agreement. Hoitt v. Holcomb, 23 N.H. 535, 552; S. C, 32 N.H. 185; Gage v. Gage, 29 N.H. 533,543; Jones v. Emery, 40 N.H. 348; Springfield v. Drake, 58 N.H. 19; Farmington Nat'l Bank v. Buzzell, 61 N.H. 618; Stewart v. Stearns,63 N.H. 99. The evidence tended to show that the plaintiff pointed out objects as the boundaries. Whether he knew they were not the true boundaries, or did not know they were the true ones, is not material, since his representation in either contingency would be an element of fraud. There was evidence that Dow was ignorant of the location of the boundaries. The evidence was conflicting as to whether the old fence was still plainly visible, and as to the location of the original line. If Dow was ignorant of the location of
the line, and evidences of it upon the ground had been obliterated, it would not be an unreasonable inference that he was not in fault for not knowing or discovering that the plaintiff's representations were false. Dow ran the line, agreed to a division of the fence, built his portion of it, and settled with the plaintiff for the alleged trespass. Apparently, he did all the things that are relied upon by the plaintiff to prove the agreement, believing the plaintiff's representations were true. There was evidence before the jury from which impartial and reasonable men might fairly find that the plaintiff fraudulently made false representations regarding the line, and that Dow was induced thereby to enter into the agreement which the plaintiff sets up. The plaintiff's motion was properly denied. Paphro D. Pike Co. v. Baty, 69 N.H. 453, 458; State v. Harrington,69 N.H. 496; O'Hare v. Company, ante, p. 104.
Exception overruled.
All concurred.