Page:Federal Reporter, 1st Series, Volume 1.djvu/276

268 ceived a negative answer from the defendant, -who said he could not afforti to. The plaintiff, as he says, made the inquiry for the purpose of drawing out the defendant and ascertaining how much he needed the money, and what he could accomplish in the way of having the interest deducted. The defendant was exercised about losing the property on account of unpaid taxes, and the plaintiiï exhibited to him the tax statements, evidently for the purpose of increasing his anxiety, and repeatedly told him he could not pay the interest. And he withheld from him the information that the property was already sold, hecause, as he says, "I did not wish to tell him. If I had, he certainly wonld not have been disposed to deduct the interest, and that was my only reason." He also told him "that the property had passed to the state, and could only be redeemed by him or myself."

The defendant received the $2,000, signed the agreement, and on the next day discovered that the property had been sold. When the plaintiff came to obtain the release or give fil plat of the property, to be embraced in the new mortgage, the defendant declined to carry out the agreement, saying that he had been deceived and misled; but he made no offer to restore the $2,000.

These are the principal facts as they appear chiefly from the plaintiff's testimony. Leaving out the testimony intro- duced by the defendant, and examining the case upon the plaintiff's evidence, I do not think he is entitled, in equity, to a strict performance of the agreement by the defendant.

It is impossible to read the plaintiff's testimony without arriving at the conclusion that he desired to make a compro- mise to his own advantage, without putting the defendant upon the same level, and not only concealed facts which, if known, would, in his own opinion, have influenced the defend- ant's action, but also induced him to believe that no redemp- tion of the property for non-payment of taxes could be made from the state by any one but the defendant and himself, when, at the time, the property had been sold, and, by the terms of the sale, the railroad company were to reserve from the purchase price enough to pay taxes and redeem the prop-