delivered the opinion of the Court:

The second plea, as amended, was substantially good, and the demurrer should not have been sustained to it. It might have been, in some respects, more formally drawn; but it clearly sets up fraud in obtaining the execution of the instrument which was the foundation of the suit.

The plea is claimed to be defective because it does not show what matters were in difference between the parties at the time of the settlement.

The plea avers that the parties settled their accounts with ■ respect to the farm in the declaration mentioned, and allowed damages for the surrender of the possession. The writing was evidently executed for these matters. Such is the legal intendment from the averments in the plea. There could have been nothing else to constitute the consideration of the agreement.

It is further contended that the plea does not negative the averment in the declaration that the plaintiffs had surrendered the farm to defendant, and he had accepted it, and there was no offer to restore the same to plaintiffs, and place them in statu quo.

The averment, in this regard, might be improved, and made more explicit; but we think it is sufficiently certain. In the conclusion of the plea, it is averred that, upon information of the false and fraudulent representations, and while plaintiffs were still in possession of the farm, and before any performance of the contract on their part, the defendant repudiated the same, and notified the plaintiffs that he would not be bound by it; and that they then 'abandoned the farm, and announced their determination to enforce the contract.

The only averment of performance on the part of the plaintiffs was the surrender of the possession. The express undertaking on the part of the defendant was to pay a certain amount of^money, and, impliedly, to accept the possession. The settlement, however, as to the surrender, possession and payment, was an entirety. Payment could not be enforced of the money without a surrender of possession. This view of the contract has been taken by the pleader, and he has averred in the declaration full performance by plaintiffs in the surrender of the farm.

Does not the plea negative the averment of surrender and acceptance? It expressly avers that plaintiffs were in possession when the contract, in their presence, was wholly renounced for fraud, and that they then abandoned the farm. This must be regarded as a distinct denial of the declaration. If the plea be true, there could not have been a surrender and acceptance, in the sense of those words as used in the declaration. The defendant could not disavow the contract and at the same time accept the possession. The acts were incompatible.

There was not negligence on the part of the attorney in fact which would relieve of the alleged fraud. The principal was absent from the State, and the attorney did not omit proper care and prudence in not writing to his principal, and awaiting a reply as to the truth or falsity of the statements made.

The agent met the plaintiffs, in the absence of his principal, and was informed as to their knowledge of the matters to be adjusted. He relied upon them, trusted in their truth, and was induced, by their false and fraudulent statements, to make the contract.

He had the right to rely upon their assertions. There was nothing to create suspicion, and the law does not require that, without any cause, we should indulge in mistrust. It does not encourage constant doubt, which would destroy all confidence in the existence of honor and honesty.

The plea avers that the parties, when they met, did not have equal knowledge of the facts, and that the false and fraudulent representations of the party possessing superior information were made to induce a settlement. The object was accomplished. ' Should the plaintiffs complain because reliance was had in their veracity? Can the confidence reposed excuse or lessen their fraud ?

We think that the plea is certain to a common intent, and that replication should be made to it.

The judgment is reversed and the cause remanded.

Judgment reversed.