defendant, and stated to him that he must rely entirely upon his representations. In order to induce plaintiff to make a purchase, and as bearing upon the question of the value of the lots, the defendant represented that he had sold some 50 of them, which he marked off on the plat, at $400 each. Many of them were situated upon the same street as the lots purchased by plaintiff, and the balance upon the next street adjoining. Upon defendant's own showing, it does not appear that 50 lots were sold, or that there was a cash consideration for those that were sold, but that other property was taken in exchange; and the testimony of plaintiff's witnesses shows that these lots would not exceed in value $75 to $100 each.

The defendant requested the court to instruct the jury as follows:

"2. The fact that plaintiff viewed the premises-i. e., the lots in question-was a full notice to him of the true value of the lots. All remarks and statements made by McKinstry were matters of opinion only.

"3. In all real-estate transactions, where the vendee has an opportunity of viewing the premises, the principle of caveat emptor applies, i. e., the purchaser is on his own guard as to value, and all matters that could be seen or known by viewing the land and examining the land.

"4. The testimony shows that McKinstry had such title in the lots as warranted him in contracting and agreeing to give a warranty deed. His subsequent acts prove this, as the warranty deed was passed to Moon exactly as agreed by McKinstry, and a good title has been conveyed."

The second request was given in part, but the court modified it by saying: "If you believe that they were mere matters of opinion expressed, and not misrepresentations, then you will find for the defendant." The court very properly made this modification. Under the testimony, it became a question of fact for the jury to determine whether the representations as to value were mere matters of opinion, or were assertions of fact, upon which the plaintiff had a right to rely; and, in determining this,

the jury had a right to take into consideration the representations made as to the sales of other lots. The defendant does not deny that he represented that he had sold the other lots at $400, but admits, upon his cross-examination, that it was in the way of exchange, and not for cash. We think the representations as to the sales of those lots were such as to induce the plaintiff to believe that they were cash sales, or, at least, that that was a question which the jury had a right to take into consideration in determining the falsity of the representations made.

Substantially, the court gave the third request to charge. It added, of its own motion, however, the following:

"I will leave it to the jury if the parties met on an equality in this respect as to the representations. It rests almost entirely between the two men. One says he insisted on taking the other over, and let him see the lots, and took time about it, and it was a satisfactory transaction; and the other says he was urged into it by the hour. Now you must decide between these parties as to the value. Fraud is not to be presumed from slight circumstances. It must be established like anything

else."

We think the court fairly stated the rule of law in this charge as applied to the facts in this case.

While the court declined to give defendant's fourth request, he did state to the jury that

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"The defendant claims that he did not know much about Windsor deeds, but was perfectly willing to correct the mistake. There is no doubt, gentlemen, that a slight complication as to the title arose early in the case, in the American deed, and defendant claims he had that corrected, and that he was willing to correct it all the way through; and the real dispute is not so much about the title, as it is about the value. It is not so much about the deed to plaintiff, but the real issue is the value of the property at the time of this transaction."

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We think, under these circumstances, the defendant has no right to complain that the fourth request was not given, even if he was entitled to have it given. The court treated the matter as though the only contention which the plaintiff made was over the value of the property; and it would seem, if any error was committed, that the plaintiff would have the better right to complain.

We have carefully examined the record, and are unable to discover any error.

The judgment must be affirmed.

The other Justices concurred.

TAYLOR v. SHIMMEL.

CERTIORARI-RETURN- EVIDENCE- REMOVAL OF SCHOOL-DISTRICT

OFFICER.

On certiorari to review the action of a township board in removing a school-district officer under 2 How. Stat. § 5170, the return of the clerk of the board is to be taken as true. The fact, therefore, that the testimony returned is insufficient of itself to support the order of removal does not call for a reversal, where the return shows that evidence was introduced sustaining the allegations of the complaint, and that all of the testimony is not returned.

Error to Manistee; McMahon, J. Submitted December 4, 1895. Decided December 24, 1895.

William G. Taylor instituted proceedings before the township board of Maple Grove township, Manistee county, to remove Frank Shimmel from the office of assessor of school district No. 4, in said township. From a judgment of the circuit court on certiorari, affirming the

action of the board in removing him, defendant brings error. Affirmed.

P. W. Niskern, for appellant.

Dunlap & Chamberlain, for appellee.

LONG, J.

Defendant was removed by the township board from the office of assessor of school district No. 4, Maple Grove township, in the county of Manistee. William G. Taylor made the complaint (which was in writing) that, as assessor, the defendant had illegally used and disposed of public moneys intrusted to his charge, and had persistently refused and neglected to discharge the duties of his office as such assessor. The proceedings were brought under section 5170, 2 How. Stat., which provides for the removal from office by township boards of any school-district officer who shall have illegally used or disposed of any of the public moneys intrusted to his charge, or who shall persistently, and without sufficient cause, refuse or neglect to discharge any of the duties of his office. After the removal, the defendant removed the cause to the circuit court for Manistee county, by writ of certiorari. The only allegation of error upon which the writ was issued is that "said township board erred in making an order of removal removing this deponent from office as assessor of this school district, upon all the allegations set forth in said complaint, without proof establishing them." The circuit court affirmed the order made by the township board, and the case comes to this court by writ of error.

The return was made by the township clerk for the board, and states that all the testimony is not returned, but that the defendant repeatedly testified that he had paid out the various sums of money set forth in the complaint, from the funds belonging to the school district, without any orders drawn by the director and countersigned by the moderator of the district, and that there was

testimony showing that the defendant did persistently neglect and refuse to perform the duties of the office of assessor. It is contended, however, that the court could not consider this return, as the testimony was returned, and that from the testimony it conclusively appears that the return is not true. If no testimony had been returned, we should be compelled to take the return as true, and it must be now so taken, as the return shows that all of the testimony is not included in the record. Counsel for defendant relies upon the case of McGregor v. Board of Supervisors, 37 Mich. 388. That was a proceeding to remove the county treasurer of Gladwin county, for failing to file his official bond, and it was held that the records of the board of supervisors failed to show all the facts necessary to constitute cause of removal. It was there said that the deficiencies in the record in this regard could not be supplied by return to a writ of certiorari. It was deemed necessary by the court in that case that the records of the board should show affirmatively all the steps requisite to the removal. In the present case it was not necessary to record the testimony taken. The return sets out the acts complained of, and that evidence was given which supported the complaint. We must take the return as true.

The judgment of the court below, affirming the action of the township board, must be affirmed, with costs.

The other Justices concurred.