(after stating the facts). The first proposition presented by plaintiff, appellant, is that the court erred in holding that under the plea fraud was charged. We think plaintiff is foreclosed upon this question. Counsel for plaintiff objected to the introduction of evidence on the question upon the ground that the prior dealings leading up to the con*357tract were merged in the contract itself, whereupon the following occurred:

“The Court: I understand fraud is charged.

“Mr. Walsh (counsel for defendant): Certainly.

“The Court: We will receive it.”

It will be noted that no claim was made at that time that the plea was insufficient to support evidence of fraud in the making of the contract. During the examination of the defendant, counsel for plaintiff objected to certain testimony stating:

“This is an action for fraud against us on account of this being a counterclaim, and value is not a basis for an action of fraud.”

At the close of the evidence a motion was made by plaintiff’s counsel to strike out the testimony, in which it is asserted:

“The defendant has pleaded fraud, to a certain extent, in the making of the contract, under the holding of your honor in overruling the motion, but he has failed in his proofs to sustain such plea as against plaintiff.”

In his request to charge counsel asked no direction upon the ground that fraud was not charged, but did make a request for a direction upon the ground that there was no evidence of fraud introduced. Under these circumstances the trial court having proceeded upon the assumption that fraud was properly charged in the plea, and counsel for plaintiff having raised no objection to the pleading, the same will in this court be held sufficient. A further claim of plaintiff was made both by motion for a direction of a verdict and also set forth in his request to charge that there was no evidence introduced tending to show fraud sufficient to vitiate the contract. Upon a review of the whole record we are unable to say that the court erred in submitting the question of fraud to the jury. J. B. Millet Co. v. Andrews, 175 Mich. 350. Despite the *358condition, contained in the order to the effect that the “order slip together with said certificates constitute the complete contract, no other agreement being recognized,” we are of opinion that the contemporaneous agreement signed by Kramer permitting the defendant to cancel the order under certain conditions, paying for what he had already used, should be construed as a part of the contract. Kramer’s name appears in the order itself and is the only one representing plaintiff known to the defendant. Plaintiff in his deposition denied that he had ever authorized Kramer to make such an agreement; nevertheless when the defendant wrote to plaintiff, within 20 days after the execution of the original order, calling his attention to his rights under Kramer’s agreement, the plaintiff did not in any way repudiate said agreement as being beyond the scope of the authority of his agent. Counsel for plaintiff asserts that neither in his. correspondence nor his evidence does defendant claim to cancel the contract by reason of the fact that the proposition had become unprofitable. While defendant was unable to give the exact-sum per gallon for which he sold the whisky received by him, he did testify that he sold it around $2 per gallon. Inasmuch as the government tax was $1.10 per gallon, and the purchase price was from 90 cents to $1 per gallon, it is entirely clear that no profit could have been realized from the sale.

It is further claimed by counsel for appellant that defendant, by ordering out of bond two barrels of whisky in the month of February, after he had received and tested the first two barrels, affirmed the contract and he was therefore estopped from repudiating it thereafter. Defendant’s explanation of his act in this regard was:

“I wanted to bring the lawsuit here instead of having to go to New York city to try it.”

*359The court submitted this question to the jury, instructing them that if they found that the second two barrels ordered in February were so ordered as a continuation of the deal, under the original order, that such action would constitute an affirmance of the original order and work an estoppel against defendant, but further:

“If, on the other hand, this order was but an attempt on Taylor’s part to regain the amount of money that he claimed was fraudulently obtained from him in excess of the price of the goods and expenses of the barrels of whisky that he received, and you so find from the proofs, then you are warranted in finding that the second order does not operate as an estoppel.”

The judgment in this case recovered by defendant represents the amount of money paid by him to plaintiff in excess of the value of the two barrels of whisky delivered by the plaintiff to him under the contract. Plaintiff has been paid for the goods he has delivered and has in his possession the balance of the order as well as the sum representing the judgment over and above the value of the goods delivered.

There has been no miscarriage of justice in this case, and the judgment is affirmed.

In my opinion a buyer cannot, for an alleged ulterior purpose, order goods on his contract and then repudiate it.