the field. While still at this cut, with Shaffer's assistance, Deaumer proceeded to sketch in on his map the line of the Upper Freeport outcrop, as indicated by his supposed observation of it at different points; this line, as so laid out, being thus not only inherently in error in its general contour, by reason of Shaffer's misrepresentations, but also, at several places along the creeks and valleys in the middle, being made, by Shaffer's misleading promptings, to vary widely from where it was ultimately found.

With this misinformation instilled in to the assistant whom he had sent out, Mr. Selwyn M. Taylor, on October 14th, came himself upon the field. Shaffer said that another party wanted to see it, and left Mr. Taylor to the guidance of Deaumer, by whom he was shown the coal blossom in the road, the Sanford Scott or Jacob Grove pit, the Old Mill mine, and the Masontown bore hole to the south of that. For lack of time they did not visit the openings to the northeast, towards the Cheat river, but Deaumer told Mr. Taylor that according to Shaffer they were Upper Freeport, which Shaffer had further assured him underlaid the whole. He also showed the notes which he had taken, and the line of the outcrop as he had sketched it in with Shaffer's aid. Being asked by Taylor why he skipped certain openings with it which were marked upon the map, he explained that Shaffer said they were not the Freeport but the Upper Four foot or Masontown vein. He also repeated the declaration of Shaffer that the McKinney openings, shown on McMillan's map, were a mistake. The misconception of the property induced by Shaffer was thus carried forward, and colored the views of Taylor, and the deception of the three experts who had examined the property was complete. Based on the data which he supposed he had obtained, on October 20th, Mr. Taylor made a favorable report, which, with a similar report from Haseltine, was gone over carefully by the plaintiffs, and, after a further extended conversation on the subject with Taylor by telephone, it was decided on October 23d, two days before the option expired, that they would accept. The defendants having been notified, a new and somewhat modified contract was subsequently drawn up, by which, among other things, the price per acre was reduced to $23.50, following which steps were taken to have the titles examined and the proper papers passed. By the middle of January, 1903, deeds were executed and delivered and payments made as to all but three of the different tracts, and by April 4th everything as to these also had been closed up. Meanwhile a corps of engineers were put upon the property, to run the outcrop line, and another to locate a site for the proposed coke plant, and lay out the branch from the Baltimore & Ohio Railroad. It was at this juncture, and as a result of the survey, that the plaintiffs for the first time discovered the deficiencies in the property and the mistake which had been made in the estimate of it; and being convinced, as already stated, after having fully investigated the subject, that they had been badly imposed upon, and the defendants, after having their attention called to the matter, having refused to recognize their responsibility, the present bill was brought.

By the facts which have been so recited, and others to be found in this record, it is established to a demonstration that the most glaring misstatements were made with regard to the character of the property, on which the plaintiffs were led to rely, as the result of a confidence directly inspired, the responsibility for which the defendants cannot avoid. It is of no consequence that they are not themselves convicted of misrepresentations, and that they suffer for the delinquencies of another. This is unfortunate, but it is not material. The acts of Shaffer, their accredited agent, within the apparent scope of his authority, were their acts, and his misconduct theirs, and they must take the bargain so secured with all its infirmities—the burden equally with the benefit.

It is idle to argue against his agency, the defendants having expressly recognized and held him out as their local representative to show prospective purchasers over the property, on whose knowledge they could rely. The country was wild and mountainous, which made it important that some one intimately acquainted with its peculiarities should act as a guide; for which we need no more than the experience of Deaumer in trying to make an independent examination of his own. But more than this, the coal indications to a casual observer were obscure and elusive, and needed an interpreter, and this the defendants undertook to supply. Declaring themselves unfamiliar with the property, in repeated conversations with Murray and Haseltine, they referred them to Shaffer, as one who had taken up the coal field for them, and was thoroughly acquainted with it, and would show it to any one who was sent to examine it. He was actually under contract with them to do so, and was to get $2 a day for his services, in addition to the price per acre he was to receive in case of a sale; on which basis the defendants settled with and paid him for what he did in taking Haseltine and Deaumer over the property, thus virtually adopting and confirming his acts. The contention is that he was merely to take the plaintiffs' experts to such points as they desired to see, and that, as to anything outside of this, he was a volunteer. But he did not so understand his duties, nor did they; nor was that the extent of his contract or commission. He was to do this, but he was to do more. He was to show the field as an aid in selling it, and was expressly commended to the confidence of the plaintiffs to that end. So accredited, he was bound to show it as he knew it, without evasion, concealment, or misrepresentation. No doubt the defendants might have contented themselves with much less. They were not required to make any disclosures with regard to the property, allowing the plaintiffs to get such information as they could. But this would not have sold the land, and they did not stop with it. Nor could it have been understood that, in introducing and commending Shaffer as one who was intimately acquainted with the property, and would show parties over it, it was intended to limit him to acting as a mere uninformed and uninforming guide. He was not called, of course, to furnish expert knowledge, and, as already observed, his expressions of opinion are carefully to be distinguished from his statements of fact. It was for those who were

sent to examine the property to draw their own conclusions from the information which they received and the observations which they made, and it was on this that the plaintiffs were expected to rely. But this required the information furnished to be as complete and accurate as possible, and in undertaking to give it, through Shaffer, as they did, the defendants were bound to see that it was as he and they knew it, and not misrepresented or distorted, or concealment and deception practised, as was the case.

It is said that the experts who were employed by the plaintiffs failed in their duty, and relied on what was told them to an extent that they had no right to do; that they were bound to take the statements made them only so far as they were proved; and that this is nothing more nor less than an attempt to put off on the defendants the result of their inefficiency and mistakes. Also, that the defendants did their full duty when they placed in the hands of Haseltine and Deaumer carefully prepared maps of the territory, showing the different openings, to which they were severally taken, and allowing them to make such observations and deductions as they chose; and that the plaintiffs relied on the examination so made, and the reports which they got through these sources, with the character of which the defendants had nothing to do, and for which they are not now to be held. But this is more specious than sound, and has already practically been answered. It seeks to measure the defendants' responsibility by the delinquency of others, if any, rather than by their own, and it puts out of sight the direct agency which they had in the final result. It may be that Haseltine and Deaumer allowed themselves to be drawn into a confidence which they should not have entertained, as the sequel no doubt proves. But it cannot be said that the professions of Shaffer as to his intimate knowledge of the country, as well as the credit directly given him by the defendants, did not invite, as well as justify, it at the time. And it ever comes with an ill grace for any one to suggest that too implicit a reliance has been put in what he has said and done. Pom. Eq. Jur. § 896, n. Nor was it to be expected that those who were inspecting the property under Shaffer's guidance would not only steel themselves against his statements, but be able to detect the deception in which he indulged. They were at least entitled to rely on being treated with common honesty, and not to assume that they were dealing with a rascal. And to expert reports, based upon misinformation and concealment, as these were, a purchaser cannot in all conscience be held. Undoubtedly, the plaintiffs were led to close with the option and take the property on the favorable reports of it which they got. But this only serves to emphasize the responsibility of the defendants for the fraudulent means by which these reports were induced.

It is said, however, that the character of an undeveloped coal field, such as this, can never be determined with accuracy, and, the means of knowledge with regard to it being open to the same extent to both parties, the purchaser is bound to investigate it for himself, and is not entitled to rely upon the representations of the vendor, which are to be taken as mere expressions of opinion, by which,

as it is conceded, no one is expected to be bound. The general principle which is so appealed to has been already recognized in this opinion, but has no application to the case as made. It has also been practically disposed of in what is said above. An examination of the field by the plaintiffs may have been a duty, and, had it been made without any attempt on the part of any one to influence it, there would have been no just ground for complaint. But unfortunately that was not the case. There was a direct intervention in it by the defendants, through the agency of Shaffer, which upsets it all. It may be that his statements with regard to the character and identity of the vein might pass, under ordinary circumstances, as mere expressions of opinion, under the rule invoked. The trouble is, however, that they were made in the face of direct knowledge to the contrary, which he had no right to misstate, as he did. They were in fact, for the most part, nothing short of positive falsifications, accompanied also by concealment and deceptive showing, the responsibility for which the defendants must assume.

It is further said that the denial by Shaffer that there were any developments on the Falls Tract, such as the McKinney openings, is the only serious thing in the case, and is met and offset by the fact that they were plainly shown on McMillan's map; and that, the defendants having unmistakably in this way affirmed to their existence, neither Haseltine nor Deaumer was authorized, on the mere say-so of Shaffer, to assume that they were not there. It amounted at the most, as it is urged, to an assertion by the defendants by one representative that there were such openings, and a denial of it by another; and, the one being as much to be relied on as the other, concealment cannot therefore be charged. It is conceded that a different aspect would be put upon the matter, so far as Haseltine is concerned, if Shaffer called McMillan to task for it in his presence. But this is denied; the interview in which that occurred, as it is claimed, being when Haseltine was not there. The evidence is not clear upon the latter point, and the defendants' version may therefore be accepted. But, even so, it does not justify the argument made. Notwithstanding the map, it could not be expected that Haseltine would persist in the face of Shaffer's denial. What good, indeed, would it have done him if he had? And what inquiry of others, after Shaffer's careful instruction to the people about there, would have been likely to succeed? No road to these disputed openings was indicated on the map, and none was visible; in confirmation of which he was assured by Shaffer that the country in that direction was an impassable wilderness, owned by people who paid no attention to it. This was plausible, and was bound to prevail, coming, as it did, from one of whose intimate acquaintance with the region Haseltine was assured, not only by his own reiterated declarations, but by the assurances of the defendants themselves. Against the particularity and positiveness of statement indulged in by Shaffer, the map counted for little, and could not be expected to. At the best, it was indefinite and inconclusive, the unsupported declaration of an absent party, and to cling to it under the circumstances would have been a reflection by Haseltine on his companion, which might have deprived him of

his further guidance. He had a right, therefore, as had Deaumer after him, to rely on the statement of Shaffer that the map was a mistake, and to disregard it as he did. It is, of course, not to be accepted that this is the only serious feature in the case. There are others equally so, even if this were out of it; but the truth is that, notwithstanding what is said of it, it is to be reckoned with along with the rest, in the general account which the defendants have to face.

It is finally urged with confidence, as a ground for denying relief notwithstanding the misrepresentations proved, that the relation of the parties to the subject has been changed, and that, the plaintiffs being unable to restore the status quo, the right to rescind, if it ever existed, is now irreclaimably gone. The defendants, as it is pointed out, at the time they were approached by the plaintiffs, had some 60 different options, by which the collective field was held. This imposed upon them no personal obligation, merely giving them the privilege, according to their ability and pleasure, to take or refuse any one or all. These options, by their contract with Haseltine assigned to Murray, they agreed, as it is said, to hand over, without more, at a certain additional figure, an option on an option, which also involved them in no responsibility, and enabled them simply to make the difference in price. This optional contract, as it is further said, was subsequently superseded by the one of November 17th, with new and modified provisions, which put quite a different aspect upon the matter. The price, for one thing, was reduced from $25 to $23.50 an acre, and there was to be no less than 5.000 acres in all, while by the original agreement nothing was said about this; and according to the options which the defendants were to turn over, payment was to be made simply by the coal acre, the quantity of which was to be determined by a survey. Abstracts and searches were also now required, showing marketable titles free and clear of incumbrances, which had not been previously exacted. And whereas, by the prior agreement, payment was to be made to the defendants themselves ($10 an acre down, upon presentation of a good and sufficient title, and the balance with interest in three annual payments), leaving it to them to take care of the purchase money going to the original owners, by the subsequent agreement, payment to the latter was to be made direct, and only the amount over and above this was to be turned over to the defendants. As the result of all of this, it is pointed out that, if rescission is now ordered, the defendants will get back, not the options which they held and the freedom of action which they enjoyed under them, but will be saddled with the land itself, which they might never have concluded to take, together with the additional tract about the Everly mine, which the plaintiffs directed to be purchased, not included in the original bargain; and they will also be required to repay the whole purchase price-some $139,000 to say nothing of the other moneys claimed, over $70,000 of which has gone into the pockets of the landowners, and of which they never got a penny. Moreover, had they taken up the land themselves, on the options which they held, but which are now inoperative, the deferred payments, as it is claimed, would have been met by the earnings from the property, which they had proposed to develop, but