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Opinion,

Mr. Justice Green:

It was entirely undisputed that Kramer and Winslow, with two others, were tenants in common of the land in question, each having a one fourth interest. It was established by the testimony of the defendant himself that'pi'i°r to the execution of the paper of January 24,1880, he had been negotiating with eastern parties for the sale of the land, and had actually made a contract with the Sandy Lick Gas Coal & Coke Company, or its representatives, for the sale of the property for a consideration named therein, which was known to him; that at the time he obtained the paper of January 24,1880, he did not tell Kramer what he was to get for the land, and that he never told him, or gave him any information on the subject, but that he did say to Kramer the land would not be sold for less than $30,000. In actual fact, Winslow had contracted to sell the land before January 24, 1880, to the coal and gas company for *496$44,497.50. But before he made that contract he had accepted from the plaintiff an agreement authorizing him, Winslow, to sell the plaintiff’s interest, being the undivided one fourth interest in the land, for the consideration of $7,500, with authority, also, to have execution issued against Kramer on a certain judgment, and the interest of Kramer sold by the sheriff, so as to perfect the title. There was an added provision that if Winslow failed to make the sale before February court, 1880, the execution was to be stayed. This agreement was made in December, 1879. The precise date does not appear, but it was testified to be about the middle of December. After this, and before January 24, 1880, Winslow made the contract for the sale of the whole tract for $44,497.50, and after that he obtained from the plaintiff the paper of January 24,1880. There is no occasion to go any further with the statement of facts than this.

That the agency of the defendant for the plaintiff in making the sale was perfectly established by the paper of December, 1879, is not open to a moment’s question. That the sale was made by the agent while that agreement was in force, is proved by the defendant’s own personal testimony. That he withheld from the plaintiff all knowledge, both of the fact of the sale and the amount of the consideration, is actually narrated by the defendant as a witness on the stand, and .apparently as if he thought such conduct lawful and honest. Having this knowledge, he induced the plaintiff to execute the agreement of January 24, 1880. In that agreement, after reciting what was false, to wit, that he was still negotiating with eastern parties for the sale of the land, when, by his own testimony, it is proved that the negotiation had already been closed; and suppressing what was true, to wit, the fact that he had already sold the land for nearly $45,000, he induces the plaintiff to agree that he, the defendant, may have the plaintiff’s interest in the land sold at sheriff’s sale, and may buy it himself at a sum not exceeding $3,000, and, after the sheriff’s sale, that he, the plaintiff, will execute a quit-claim deed to the defendant for $7,500, the whole of which was to be paid out of the proceeds of the sale to the eastern purchasers. As if to add to the iniquity of the transaction, a clause is inserted in the agreement, at the end, but above the signatures, in these words: *497“ If sale is not made as aforesaid, this agreement to be null and void.” The effect of this was that Winslow was not to be bound in any event by anything but an actual, closed, completed sale to others; and therefore the instrument of January 24, 1880, could not possibly be regarded as an absolute deed, sealed and delivered, passing the title by its own force; but Kramer was bound to convey by quit-claim to Winslow, if he required it, for $7,500, his, Kramer’s, title, which he, Wins-low, Kramer’s own agent to make the sale, and also his co-tenant, had already contracted to sell to others for over $11,000.

Lest we may be considered as having misunderstood or overstated the evidence, we quote from the testimony of Winslow as follows : “ Q. At the time that you obtained this second contract, you had made your preliminary contract for the sale of the land ? A. I stated that before. Q. And you knew what you were getting for it? A. I knew what I was getting for it; yes, sir. Q. You did not tell George Kramer what you were selling that land for, when you got that second writing, did you ? A. I did not, sir; never told him. Q. You never gave him any information as to what it was being sold for? A. I never did, sir.” There was more testimony of the same sort, from the same witness, but this is enough. The sale by the sheriff was had under a writ of execution issued by a law firm, of which Winslow was a member. Kramer’s interest was sold to one Wilson by arrangement with Winslow, whereupon Wilson conveyed the interest to Winslow, who then conveyed to the real purchasers; and the proceedings were carried on with so much expedition that although the second agreement between Kramer and Winslow was made on January 24,1880, the final deed from Winslow to the Sandy Lick Gas Coal & Coke Company was executed on February 16, 1880, just 28 days later. On the same day, the purchaser gave a mortgage to Winslow for $29,665, part of the $44,497.50 purchase money of the whole tract.

In the court below the case was totally misconceived and mistried. It was disposed of on the theory that the agreement for the agency to make the sale was merged in the paper of January 24, 1880, which thé court held to be an absolute deed in fee-simple, and that the question was whether this deed could be changed by parol. The learned court utterly failed to sub*498mit even that question to the jury, or, in fact, any question. In the charge, the court told the jury what the plaintiff’s testimony was, and what the defendant’s testimony was, and then, without telling them what question arose, or that any question arose, for their decision, answered the points on both sides; and these answers, so far from presenting any distinct question of fact to the jury for their decision practically took away from them the consideration of any question whatever.

Thus, the court affirmed the defendant’s third point, which was: “ That, under the evidence, the writing exhibit A was superseded by or merged into the agreement of January 24, 1880.” This disposed of the original agreement of December, 1879, creating Winslow’s agency to make the sale for Kramer. Next, the defendant’s fourth point was affirmed, which was: “ That, as the evidence in this case shows an agreement in writing between the parties for the sale and purchase of the interest of the plaintiff in the land, the parties are bound thereby, in the absence of competent evidence to contradict or vary the writing.” This may mean that the parties are bound by the contract because there was an absence of competent evidence to contradict, or it may mean that they would be bound if there was an absence of competent evidence to contradict; and this very uncertainty was a conclusive reason why the point should have been either refused or qualified. But, to remove all doubt, the defendant’s fifth point was also affirmed, which was: “ That as the evidence on behalf of the plaintiff to contradict or vary the agreement consists of the plaintiff’s unsupported oath, which was contradicted by the defendant’s oath and the persuasive evidence furnished by the agreement, such evidence on the part of the plaintiff is not sufficient to establish such contradiction or variance, and the agreement must be taken as the contract of the parties.” This was a binding instruction to the jury that all the plaintiff’s testimony was insufficient to vary the deed or agreement of' January 24, 1880, and consistency required that the jury should have been directed to find a verdict for the defendant, but the court refused to do this, by refusing the defendant’s sixth, seventh, and eighth points. Nevertheless, the court did not explain anywhere, either in the charge or answers, that there was any question of any kind for them to dispose of.

*499But what makes the whole matter so very much worse even than this, is, that the court refused the plaintiff’s seventh point, which did ask to commit to the jury the whole effect of the defendant’s acts and omissions upon his' liability to account, for the reason that “ this contract of January 24, 1880, was an absolute sale of the interest; ” and yet they affirmed the plaintiff’s fifth point, which presented substantially the same facts as.the seventh, “if the jury believe, from a preponderance of all the evidence, that the contract of January 24, 1880, was changed to conform to what is alleged by the plaintiff in this point.” At the same time the court affirmed, without qualification, the plaintiff’s sixth point, which simply asked to commit to the jury the whole of the facts set up by the plaintiff as evidence of fraud by the defendant which would justify a verdict against the defendant for the amount of the difference between the sum received by him and the sum paid to the plaintiff. In other words, the jury might find for the plaintiff, under the answer to the plaintiff’s fifth and sixth points, if they found that the contract of January 24, 1880, was changed by parol, in accordance with the plaintiff’s allegations, but, under the answer to the plaintiff’s seventh point, they could not so find, because the contract of January 24, 1880, was an absolute sale of the plaintiff’s interest. And, under the answer to the defendant’s fifth point, they were absolutely directed that all the plaintiff’s testimony, taken together, was insufficient to change that contract. Nevertheless, when asked by the defendant to charge that the evidence was insufficient to change the contract, such instruction was refused, and the jury were told that all the evidence was for them. What the jury were to do under such a state of the charge and answers is simply impossible for us to understand, and, that being so, we are bound to hold that the charge and answers were confused, uncertain and misleading.

The whole difficulty grew out of the misapprehension by the learned court of the true character of the nase, and of the question involved. There was no question of merger of the original agreement or letter of attorney, authorizing Winslow to sell the plaintiff’s interest in the land, into the contract of January 24, 1880. There was no question of altering, contradicting or changing the contract of January 24, 1880, nor of setting it *500aside as void for fraud. That paper had done its work completely, and other rights had intervened. Under it the plaintiff’s interest in the land was sold at sheriff’s sale to Wilson, who conveyed at once to Winslow, who in turn conveyed to the Sandy Lick Gas Coal & Coke Company, for a full and'valuable consideration, the whole of the tract, including the plaintiff’s interest. These purchasers were innocent purchasers for valuable consideration actually paid, and without notice of any fraud. Of course, their title cannot be affected, and there is not, and cannot be, any question in the case of setting aside, changing, or altering the contract of January 24,1880. It cannot be done, and was not asked to be done by the plaintiff, and he repeatedly called the attention of the court below in his points to what was the real question in the case, to wit: How much was the defendant bound to account for to the plaintiff by reason of the facts that he had undertaken to sell, and had sold, the plaintiff’s interest in the land, and had not accounted to the plaintiff for the whole amount received? Did the defendant accept the agency for the sale ? Did he sell the interest while the agency continued ? How much did he sell the interest for? How much did he pay to the plaintiff? For the •difference, if there was any, he was liable to account to the plaintiff in this action. It was an action of assumpsit to recover that very difference, and for nothing else. The plaintiff’s case was made out by the defendant’s personal testimony. He did accept the agency to sell; he did sell. After that, and without informing his principal either that he had sold, or of the amount at which he sold, he obtained from him the contract of January 24, 1880, which has, in a contorted form only, but not in substance, the effect of an absolute conveyance. But when that paper was obtained, and if it had been of the most absolute character as a conveyance, it would not have reduced by a hair’s breadth the terms or the extent of Winslow’s liability to Kramer in this action. No question of that kind could have arisen unless Winslow had proven very clearly indeed that before obtaining that paper he had informed Kramer very fully, and with perfect truthfulness, of the fact that he had contracted for the sale, of the parties to whom he had sold, and of the precise amount for which he had sold. If, after that, Kramer had chosen to make the contract of January 24, 1880, he would be *501bound, by it; but, without such knowledge on his part, that paper would be no more than a puff of air in the way of his recovery.

The defendant’s own testimony established his own liability beyond all question, and the jury should have been so instructed. Whether he was entitled to any abatement of the full anrount of the difference between the sum he paid Kramer and the amount received, would depend upon the character of the allowances claimed, and also upon the question whether he was guilty of fraud in fact. If he was, he would be entitled to no deductions; but we express no opinion upon these matters, because they are not before us. We sustain the second, fourth, fifth, eighth, ninth, tenth, eleventh, twelfth, and thirteenth assignments of error, and on them the judgment is reversed.

Judgment reversed, and new venire awarded.

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