(after stating the facts as above). This action is not against Andem; it must stand or fall as against his counsel; and it rests on alleged deceit, concerning which the general x principles have been sufficiently stated in Farrar v. Churchill, 135 U. S. 615, 10 Sup. Ct. 771, 34 L. Ed. 246. We have pointed out in Varley, etc., Co. v. Ostheimer, 159 Fed. 657, 86 C. C. A. at 525, that in such suits “fraud is alleged and must be proved; fraud involves deception; if the plaintiffs were not deceived, they cannot recover”; and, it may be added, there can be no recovery if the plaintiffs were not deceived by the defendants whom they sue.

Upon the trial below the deception relied on, the reason for suit, was'stated thus by Clancy when on the witness stand — that he had relied on Andem’s letter, and that Andem had made a false statement as to the terms of settlement in that letter, because “I [Clancy] .have learned since that the [settling defendants] did not designate the companies as to the amount they should have.” This means that he had never -been informed that the written settlement agreement with Andem did not allocate the amount to be paid as between all the plaintiffs in the various suits pending and to be discontinued.

But by his circular letter Andem had stated what New York Company was getting, and told all his other principals that he had exceeded his authority, in that he had in fact settled all the suits, except that of the New York Phonograph Company, for $5C[,000; he admitted that he had no right to give a release for the Missouri Company for less than $40,000, and then Clancy came to New York to investigate the matter, saw and talked with Andem, and settled on the basis that Andem suggested. But Andem’s powers undoubtedly extended to complete control of the suits that he had brought; he could press them or abandon them as he saw fit, though doubtless he remained responsible for abuse of his authority; but with him we are not concerned, otherwise than to note that he boldly said he had settled all the suits, except that of New York Company, for $50,000, and that he had perfect right to do this, so far as the parties he sued were concerned.

In this situation, the present plaintiff was at liberty to go on, and sue as best it could, either Andem for fraud, or money had and received, or the original defendants on the original causes of action; but we wholly fail to see that, under the circumstances shown, anything contained in counsel’s letter was untrue, or that any duty lay upon them to state just how much Andem was allocating to tire New York Company, or any other party in interest, or that the plaintiff in this case relied to its disadvantage upon anything that these defendants wrote or said. The language of their letter, and their talk as related by Clancy, amount to this; that it had been hard work to force any settlement, and difficult to get anything for the companies in the position of this plaintiff. There is nothing in this record to impugn *661the truth of these statements, and the reports above noted, which any one may read, certainly substantiate one part thereof.

Judgment affirmed, with costs.