there was another interview between the parties substantially to the same effect; but he says "they were then discussing the question of security to be received from Mr. Keen," and that at one of these interviews he asked Peter Gilsey if he had any objection to his seeing Roessle, and on receiving a reply in the negative he called on Roessle, who stated that he had not made up his mind whether or not he would give up the business, but that on his stating to Roessle that he came in behalf of Mr. Keen, who was anxious to get the hotel, Roessle stated that he paid $75,000 a year rent and paid it promptly, and that the landlord had never had occasion to resort to the security for the rent, and that Roessle gave him some details with respect to receipts and expenses of the business, and that, after seeing Gilsey again, he wrote Peter Gilsey on January 20, 1904, among other things, as follows:

"I have given the matter careful consideration, and, speaking for myself alone, I am disinclined to become interested, unless I can see that Mr. Keen can successfully work out his plans in the management of the hotel, which I fear he cannot do, if he, at the outset, is going heavily into debt. In other words, I think I would be inclined to take the matter up if you would accept a proposition to lease the hotel at a rental of $75,000 per year, with satisfactory security to you, securing the payment of the rent, and provided you would arrange to purchase the furniture from the present owner and sell it to Mr. Keen at the price you paid for same, he to pay you in installments of not less than $2,500 quarterly. Mr. Keen does not know that I am writing this letter, and it is no part of my intention to say anything which would convey the impression that I am speaking finally for Mr. Keen. I simply want to make my position clear, and if you cannot entertain the proposition as herein suggested, then I must withdraw from the matter, and I leave it with Mr. Keen to do with as he thinks best."

Lancaster testified that a day or two after this Peter Gilsey called at his office and urged him to "take the matter up again and try and put it through for him," and that he stated to Gilsey that he understood that Keen was contemplating borrowing the money to put up. as security, and that if that course were pursued he would have nothing to do with the matter, whereupon Gilsey said he thought Keen could get the security, and he said that, if Keen could get sureties, he saw no objection to Keen's going ahead with the proposition, and that he would take the matter up with Keen again, and that after a further interview with Keen he delivered a proposition to Peter and Fred Gilsey, dated January 23, 1904, and that he had not seen John and Henry Gilsey up to this time, but met them shortly after the delivery of this proposition. The proposition which Lancaster thus submitted is in two parts: One is signed by Keen and addressed to the executors and trustees of the estate, and states that he was prepared to take a lease at $75,000 per annum, and to purchase the furniture for $50,000, payable in installments, and to give a bond for $75,000, with sureties, conditioned for the prompt payment of the rent and of the notes to be given in part payment for the furniture. The other part was signed by Lancaster, and likewise addressed to the executors and trustees. The body of it is as follows:

"If the foregoing proposition is accepted by you, I will agree to carry it through on or before February 1st next, or as soon thereafter as possible."

After submitting this dual proposition, and on the same day, there was a conference between Keen, the defendant, Peter and Fred Gilsey, the two uncles, and one Gardner, a relative of the Gilseys, at which the defendant and Keen say that some of the alleged false representations were substantially repeated by one of the uncles; but their testimony in this regard is controverted by Fred and Peter Gilsey and by Gardner. The uncles died prior to the trial. According to the testimony of the defendant, when this proposition was presented to the uncles, the part of it signed by him contained the word "endeavor," instead of "agree," and the change was made at the suggestion of one of the uncles, and when this was requested he objected, and stated that he could not carry out the proposition, or would not carry it out, "unless Mr. Keen had his sureties," and that he had been given no assurances up to that time that Keen had sureties, whereupon the executor said that there was no risk in the matter, and thereupon made the alleged false representations. Under date of January 25, 1904, one of the executors, in behalf of the Gilsey heirs, accepted said dual proposition, with certain conditions not material to the decision of this appeal. The dual proposition was not consummated, owing to Keen's inability to obtain sureties, which further tends to show that the defendant, at that time at least, was not obtaining information with a view to becoming a surety. The defendant claims, however, that about the 1st of February he met Peter Gilsey and said:

“Mr. Keen has not procured his sureties, and I doubt if I can do anything with this matter, and I don't want to hold it up."

Whereupon Gilsey asked, in substance, why he did not become a surety, to which he replied that the condition of his affairs was not such as to warrant him in taking any added burden that might be troublesome, and that, while he might be willing to help out by contributing a small amount of cash, he would not "take any responsibility for anybody which by any chance should put any burden upon the burdens" he was then carrying. The defendant says that Keen had stated to him that he was anxious "to get the Gilsey House, and stated, if the two houses"-meaning the Gilsey and Edgemere Hotels-"could be run in conjunction, he thought it would be a good thing for both houses," and that when Peter Gilsey asked him to become surety for Keen he suggested a proposition by which a company would be formed to take and operate the Gilsey House and the Edgemere Hotel, and to receive a lease of each and pay the rent of the Edgemere by issuing stock, which he stated would be equivalent to cash, and that the lease of the Edgemere for seven years would be as good as security for $75,000, and that Peter Gilsey promised to present the proposition to his uncles and to let him know; that later on he was informed by Peter Gilsey that the uncles did not exactly like the proposition, but that he thought they would accept it "if, in addition, I would give a bond for $37,500"; that he promised to consider this suggestion, and, after doing so, he and Keen submitted a proposition under date of February 16, 1904, to incorporate a company with a capital stock of $200,000, $100,000 of which was to be issued for a lease of the Edgemere Hotel for seven years, and to have a lease of the Gilsey

House for seven years given Keen on the terms theretofore agreed upon, and to be assigned to the new company for the remaining $100,000 of capital stock, the lease of the Edgemere Hotel to be assigned by the new company to a trustee as security for the Gilsey estate, and Keen and the defendant to deposit with the trustee $100,000 of the stock of the new company as further security to the Gilsey estate, and the defendant to furnish a collateral bond, to further secure payment of the rent to the Gilsey estate, in the sum of $37,500.

One of the executors then submitted a counter proposition to lease the Gilsey House to both Lancaster and Keen, with other conditions. involving in part the lease of the Edgemerè Hotel. The defendant says he rejected that proposition and informed the executor that he would not, under any circumstances, sign a lease of the Gilsey House or become liable as a tenant, and that a day or two after they met again and Peter Gilsey suggested that his uncles might waive defendant's signing a lease if he would increase the cash payment on account of the purchase of the furniture, and thereafter a final dual proposition was agreed upon. Both parts of that proposition are addressed to the estate of Peter Gilsey. The first part is signed by Keen, and he offers to take a lease of the Gilsey House, and to assign it to a company to be formed, and to purchase the furniture for $50,000, payable in installments, and to procure as security for the rent a lease of the Edgemore Hotel for seven years, the rent for the Edgemere to be paid by $100,000 of the stock in the new company, and the lease of the Edgemere to be assigned to a trustee named by the estate, with power to sell or assign the lease in case of default in the payment of the rent of the Gilsey House, and to deposit with the trustee $100,000 of the stock of the new company, to be likewise held as security for the rent of the Gilsey House, and to procure a bond in the sum of $37,500, to be executed by the defendant, to secure the payment of the rent and the notes, with other provisions not material here; and the other proposition is signed by the defendant, and is to the effect that, if Keen's proposition is accepted, "I will agree to carry it out on or before March 1, 1904." This dual proposition was accepted verbally and consummated on the 1st day of March, 1904, as aforesaid.

One Anderson, an attorney, who was present at the closing and appears to have been disinterested, testified that he heard the defendant say at that time that "he could not understand the fact that Mr. Roessle had not made a success of the Gilsey House"; and although the defendant subsequently took the stand and denied some of Anderson's testimony, he did not deny that he so stated on that occasion, although he did reiterate that the Gilseys had been telling him for two months that Roessle had been successful there. The Sea Board Hotel Company was incorporated in pursuance of said agreement, and it went into possession of the Gilsey House March 1, 1904, and operated it under the management of Keen until December, 1904, when it was removed by dispossess proceedings for nonpayment of rent. Bankruptcy proceedings were instituted against Roessle in March, 1904, and he was duly adjudged a bankrupt.

On the 22d day of March, 1904, a letter was written by the de

fendant, as president of the Sea Board Hotel Company, to the Gilsey estate, in which he suggested that the lessors make improvements to the extent of $25,000, instead of in the sum of $10,000, as had been agreed upon, and offering an additional rental of 10 per cent. on the cost of the work in the event of the proposition being accepted. Having received no definite answer, defendant wrote a second letter, as president of the Sea Board Hotel Company, on April 11, 1904, reiterating its former request and presenting an extended argument in favor of it, and stating, among other things, that the period of six weeks of its occupancy showed a loss of from $3,000 to $5,000, and that the former tenant had gone or was going into bankruptcy, with liabilities in excess of $100,000, and that the estate should know, from its knowledge of the management of its former tenant, that the hotel in its then condition could not be conducted profitably, but with the alterations it would become "as popular and profitable as ever before." The letter states, among other things:

"Mr. Roessle's fiasco has hurt the hotel and ourselves as tenants, and it is certainly no part of our desire or intention to make a repetition of his failure and his neglect to pay his creditors."

In the letter it is suggested that, if the estate was not willing to make the further advances requested, it unite with the tenant in procuring another tenant who would be able to furnish the money required.

It is manifest, from the information communicated in these letters, that the Sea Board Hotel Company and the defendant were then in possession of information which showed that some, at least, of the material representations claimed to have been made, if made, were false, and yet neither letter, both of which were written by defendant, contains a complaint that there was any fraud perpetrated on anybody; and this notwithstanding the fact that the tenants then knew that their expectations with respect to the business being successful were not to be realized, and they were ready to surrender the lease without suggesting any claim for damages. On the 13th day of April, John and Henry Gilsey, for the estate of Peter Gilsey, replied to said letters of March 22d and April 11th, by a letter addressed to the defendant as president of the Sea Board Hotel Company, rejecting the proposition and insisting that they would adhere to the provisions of the lease, and offering to confer with respect to the best manner of using the $10,000 in improving the leasehold property. After the defendant received this letter, and on April 16, 1911, he and Keen wrote the Gilseys, on his official letter head as an attorney and counselor at law, as follows:

"Within a few days we have discovered facts which were unknown to the Lancaster Sea Beach Improvement Company, the Sea Board Hotel Company, and ourselves at the time of executing lease of the Gilsey House and collateral agreements. We are advised that upon proof of such facts the court would cancel said lease and collateral agreements. Will you consent to cancel lease, etc., the terms to be amicably arranged? If not, we shall, on Wednes. day, April 20th, place the matter in the hands of our attorney, with instructions to take such steps as may be necessary to protect our interests and enforce our rights. We regret being compelled to write this letter, which is sent to you by advice of our counsel."

The defendant testified that in the latter part of March, 1911, which it may be assumed was after the letter of the 22d of March, he was informed by one Biglin that Roessle "went broke" at the Gilsey House and that the Gilseys were carrying him, and that he communicated this to Peter Gilsey the next day, and that Gilsey said that he did not believe a word of it, but believed that Roessle made money there, and when asked whether Roessle had paid his rent, and the same rent that Keen was paying, he answered in the affirmative and said that, if defendant doubted his word, he might come to the office and he would show him the books. Counsel for respondent cites this testimony in

his brief, and says:

"There is no question but the defendant learned during the latter part of March, 1904, that the representations made to him by Roessle were false."

But he says that the defendant did not then know that those made by the Gilseys were also false. No evidence was offered in behalf of the defendant showing that he received any information on the subject, prior to writing the letter of April 16th, that he did not have when he wrote the letter of April 11th. It is quite clear, we think, in view of all the circumstances, that the reason the letter of April 16th was written by defendant and Keen was that the propositions made to the Gilseys in behalf of the Sea Board Hotel Company had been rejected, and that it was not based on any facts with respect to false representations discovered after the letter of April 11th was written. We are of opinion that the verdict is against the weight of the evidence in so far as the jury found that any material representation was fraudulently made, and clearly so in so far as they found that the defendant, in executing the guaranty relied on any misrepresentation, if made.

[2] We are also of opinion that, owing to an error in the charge, it may well be that the jury did not find that the defendant was induced to sign the guaranty by any express misrepresentation alleged or proved. After the jury retired, the foreman sent a communication to the court as follows: "If it pleases your honor, the jury would like to know: Did the withholding of the fact of the reduction of the rent from $75,000 to $69,000 constitute a misrepresentation?" To which the court replied in writing as follows: "Purely a question of fact for you to determine." The record does not show that this communication was received and answered in the absence of counsel, nor does it show the presence of counsel. It is asserted in the points of appellants, and not questioned, that counsel were neither present nor afforded an opportunity to be present. In this state of the record, therefore, the jury may have found in favor of the plaintiffs with respect to all express false and fraudulent representations alleged, and concerning which testimony was offered, and may have predicated the verdict, not even on the alleged misrepresentations with respect to rent, but on the failure of the plaintiffs to disclose the fact to the defendant that the rent had been reduced for the two years. The phraseology of the request tends to indicate that this is probable. The jury were not justified in refusing to enforce the guaranty on the ground that the plaintiffs should have informed the defendant with respect.