
    May M. Gugel and Daisy E. Hiscox, Appellants, v. Everett S. Hiscox and Jesse F. Hiscox, Respondents.
    Second Department,
    April 22, 1910.
    Fraud — assignment obtained from beneficiaries by misrepresentation of testamentary trustees — when assignment will be set aside — conveyances between parties in fiduciary relation — burden to show transaction was fair — estoppel — failure to tender consideration — agreement to division of portion of estate.
    Suit in equity to set aside an agreement and a conveyance whereby the plaintiffs, who as beneficiaries under a will were entitled to receive an income from the testator’s business directed to be carried on by his executors and trustees, assigned their interest in the business to the executors in consideration of an agreement by the latter to pay the plaintiffs the same sum that they were entitled to receive under the will. It appeared that the trustees, who were sons of the testator and brothers of the plaintiffs, had been employed in their father’s business at a salary of $3,000 a year, and under his will were only entitled to a salary of $8,000 for conducting the business, which was very profitable, although liable for a debt due to a former partner whose interest the testator had purchased during his lifetime.
    It further appeared that the defendants, immediately after their father’s funeral, had misrepresented the earning power of the business and had thereby induced the plaintiffs, who had no knowlege of the actual state of affairs, to sign the agreement and the conveyance aforesaid. As a matter of fact, the profits of the business for three years, including salaries of $33,000 taken by the defendants, amounted to $138,000. On all the evidence, held, that the agreement was unconscionable, unjust and without consideration, and was obtained from the plaintiffs by taking advantage of their ignorance and should be set aside.
    
      Wherever the relation between contracting parties is such as to render it. cer- ■ tain that, they did not deal on terms of equality, -but where either on the one side from superior knowledge of the matters derived from a fiduciary relation, or on the other from dependence or trust justifiably reposed, an unfair advantage is rendered probable, the transaction is presumed to be void. And it is incumbent upon the stronger party to show affirmatively that no deception was practiced, and that all was open, fair and understood.
    Under the circumstances aforesaid, the fact that the plaintiffs did not before signing the agreement and deed familiarize themselves with their contents and the effect on their rights under the will does not preclude them from - attacking their validity.
    The plaintiffs are not estopped from attacking the validity of their agreement because they did not tender a return of the consideration; for in any event they were entitled to the amount of the consideration under the provisions of the will.
    The plaintiffs are not estopped from claiming their rights under the will because. they consented to the division of mining stock left by the testator, as that agreement did not extend beyond the property immediately affected thereby.
    Appeal by the plaintiffs, May M. Gugel and another, from a judgment of the Supreme Court in favor Of "the defendants, entered in the office of the clerk of the county of Queens on the 28th day of July, 1909, upon the decision of the court, rendered after a trial at the Queehs County Special Term, dismissing the complaint upon the. merits in an action brought to cancel and set aside an agree-, ment and deed alleged to have been procured by defendants’ fraud and misrepresentation.
    
      Robert F. Ma/rming, for the appellants.
    
      Thomas Young [Robert 8. Pellet/reau with him on the brief], for the respondents.
   Rich, J.:

The following facts aré uncontroverted: David Hiscox, the "father of the parties, died January 25, 1906, leaving a last will and testament, which was duly admitted to probate, under the ■ provisions of which letters testamentary issued among others to the defendants ; they qualified and have since served as executors. He had'for many years been engaged in the manufacture and sale of patent medicines and toilet articles, and o-wned'the trade marks used in connection with the business-, the formulas and recipes under which the medicines were manufactured, the buildings in which the business was carried on and the ground upon which they, stood. The business at the time of 'the testator’s death was very lucrative, the profits therefrom for the year preceding his death being $32,000, as stated in the will, which the defendant Jesse F. Hiscox testified should be reduced to $27,000 by payment of salaries, and that' the average net profits during the three years prior to his father’s death were $28,000 a year. Under an agreement made with a former copartner, Eawolle, the testator purchased his interest in ■ the business for $180,000, for which he executed and delivered his two hundred and forty promissory notes of $750 each, one of which was payable each month, commencing on May 15, 1910. This indebtedness had been, reduced, at the time of the. testator’s death, to $130,000. He also was indebted to Dauchy & Co. in the sum of $30,000, which represented a firm indebtedness assumed.by the decedent when he bought his copartner’s interest in the business. The obligations resting on the testator under the provisions of this agreement represented practically his indebtedness at the time of his death. By the terms of his will he devised his entire estate. to his executors in trust, and directed the defendants to carry on tlie business as executors, and to each retain from the yearly profits $3,000 for their services, which compensation was based upon estimated net annual profits of $32,000, and was to be increased proportionately as the profits increased; to pay each year to the widow $4,000; to each of the three daughters — of whom the plaintiffs are two — $1,000 ; for the support Of an incompetent son $1,000 yearly; to one Hughes $2,000, and to apply the balance yearly to the payment of his debts. These payments were to continue until the debts were paid or both defendants sooner died. ■ If before that time either daughter died, the $1,000 directed paid to her was directed to be paid to her children. If the widow died, the $4,000 given her was to be turned over each year to the trust fund and applied to the payment of such debts. Upon the payment in full of the debts, or the earlier death of both defendants, the estate was to be distributed, one-third to the widow, if living, and the balance (if the widow was dead, the whole) to the five children, of whom the parties are four, in equal proportions, with the exception that before the division a fund sufficient to produce an annual income of $1,000 was to be deducted for the benefit of the in competent son, and such income devoted to his support. Upon his death the trust fund so set aside for his benefit was to be divided between the widow and five children in the same proportions as the body of the estate..

The day after their father’s death the defendants went to the office of an attorney and caused him to prepare the agreement which it is sought to set aside in this action. The agreement was prepared complete, as executed, with the exception of the date,- and a clause providing that it should become binding upon each of the parties of the first part, the widow and • daughters, as soon as executed by them or either of them, “ notwithstanding that the same may not be executed by any other party or parties of the first part,” which were inserted later.'- By its provisions the widow and daughters released to their brothers, the defendants, the -business which the husband and father had conducted in his lifetime, together with all patents, trade marks, copyrights and the good will of the business, and agreed to execute any further instrument necessary to carry such transfer into effect, and to execute a deed conveying to-the defendants the premises upon which the business had theretofore -been conducted, together with the buildings thereonj “and everything connected-therewith.” A- deed was later executed and delivered, and is also sought to be set aside. The consideration expressed in this instrument was, first, the payment, by the defendants to the widow of ‘$4,000 per year; to each of -the daughters $1,000 per year “ for and during.tlieir natural lives, or as long as said business shall remain profitable and in the possession and control of the parties of the second part” (the. defendants); to the incompetent $1,000. per year during his natural life; and second, the assumption and agreement to pay (by the defendants) Dauchy & Go. the balance due them, stated to be about $30,000; the indebtédness owing the estate of Bawolle, stated to be $130,000, “ and all other indebtedness of said business of Hiscox & Co.” On the day of the funeral the defendants,, accompanied by their attorneys, met the widow and daughters at the house of the deceased, and after the reading of the will the parties had a conversation with reference to the- future. As to the details of this conversation the several-witnesses differ. One of thp attorneys^ testified: “ That paper [the agreement] was read and discussed there at the meeting after having read the will and the Rawolle agreement. I then stated the position of the two brothers, Everett and Jesse His-cox. I said that the two brothers thought that the will as to them was very unfair. I stated that these two brothers said that the will as to them was very unfair; that they had conducted this business for many years; did all the work practically; that their father, while the nominal head of the business, had really done very little in -it; that his interests for the past year or two had been more in gold mines and things of that character than it was in the business ; that the business had now begun to pay and that their efforts were what made it pay ; that when they had taken hold of it,' this business owed a very large debt. They claimed the credit for having pulled this business out-of. a very bad financial hole; that.they had remained with their father at his urgent and earnest solicitation when they might have gone out and acquired a standing in the world and been ¡able to. obtain each, of them a large salary; that they had. -stayed-, there-with the idea and expectation that at his death this business would be theirs; that they claimed to- be the only ones in possession of these formulas. * * * I then, stated the,suggestion as to the Rawolle indebtedness as to the amount of the Daucliy indebtedness and said to them that if this business -at the.-present time were turned over to any one else, it would, be ,a very doubtful proposition whether they could make it pay; that .the two brothers Everett and Jesse Hiscox said that they would not go On under the arrangement provided by the will; that they possessed the, only knowledge as to these formulas and that they would .not go on and conduct the business under the arrangement provided by the will ;- that they would propose an arrangement under which they would go on and conduct.the business. I then read the, agreement which I had prepared. After reading that agreement, there, was a large number of -questions by the.different ones present and a great deal of discussion. I think, that after this decision it was stated that, the parties to the agreement would come to my -office, I cannot remember whether a day was fixed, or not, but within a few days, and execute it. In a few days Miss.,-Daisy Hiscox and -her mother and two brothers came to my office. • .The agreement was read over from start to finish again.'- I think that Miss Daisy Hiscox asked me during the course of the reading several questions. One question that she asked me I think, was as to whether this payment of one thousand ($1,000) dollars should go to her heirs in case of her death and it is my recollection — I have not seen the agreement in some time — it is my recollection that I said no. I don’t remember any particular part that she asked about. It was all read over and my recollection is that Mrs. Hiscox signed it first and then Miss Daisy and I took the acknowh edgment.” Another witness testified that when the will was read and Mrs. Gugel was present, “ then lie read the Bawolle agreement and then this matter was discussed, the boys stating - tliax they would not proceed under the terms of the will and would not conduct the business and would not accept the obligations of the trust. mentioned in the will. The proposed agreement, a copy -of which is annexed to the complaint, was read in' full and portions of it were re-read. * * * Miss Daisy Hiscox asked a number of questions and I distinctly remember that she inquired about her heirs, whether they would continue to receive the thousand ($1,000) dollars per year payable to her as an annuity during her life.” They were asked “ if they all understood it and if they were satisfied with it and Mrs. Hiscox, the mother, said she was, and then he turned to Miss Daisy Hiscox and asked her if she understood it and was satisfied and she said yes. 1 was there only as attorney for the two defendants in this action:' * * * 'It was signed by the two boys and by Mrs. Mary M. Hiscox and Daisy Hiscox.” The defendant Jesse F. Hiscox testified: “ I took the agreement known as ‘ Schedule A ’ annexed to the complaint to my sister Mrs. Gugel, in Long Island City. I heard her testimony on the stand and was present when she signed the agreement. I had very little conversation with her. All that I remember is that I handed her the agreement and told'her to read it over. She read it and I asked her if she understood it. She said she didn’t know if she understood everything in it. She wanted' to know whether it was like the will or whether the will could not be carried out and I told her that we didn’t care to carry the trust out in the will and-if we didn’t con- • tinue the business and the executors took it there wouldn’t be anything; if they were willing to sign some kind of an agreement so we could run the business, why those were the terms we would gladly give them. She said as long as her mother and Daisy had signed it, she was perfectly willing to sign it, so I got a notary public and she signed it. * * * I recall the occasion of the meeting of the family, at my father’s house after his death and the night of the funeral. * * - This agreement annexed to the complaint was then read, * * * parts of it more than once. I'don’t recollect whether he read the whole thing more than once at that time or not. My brother Everett and I stated there in the presence of the plaintiffs in this suit we wouldn’t run the business under the trust in the will, but that if some kind of an agreement was made between all of the heirs and the executors, we would be willing to continue it •and pay the debts so long as the business was profitable.” The defendant Everett S. Hiscox testified : “ After the funeral the will was read. After reading the will the Eawolle agreement and this family agreement was read over and discussed. When I say family agreement, I mean the agreement dated January 31, 1906. My brother and I objected to carrying out the trust part of the will and we refused to carry on the business under that arrangement because my father, made another arrangement with my brother and I prior to this to carry on the business; transferred it to us. * * * We explained that evening when this Eawolle agreement was made that Mr. Eawolle required my father to provide some way to continue this business to secure his notes. We were named in that agreement. There was a salary of two thousand ($2,000) dollars a year named in there which we refused to accept as sole compensation for the continuation of the business and the ‘liquidation of his debts. Mr. Eawolle said he must make a conditional will which he did. * * * Mr. Eawolle required this will made to secure his indebtedness and my father made it, leaving a certain percentage of any profit which might be over what was due Mr. Eawolle, to my sisters and my mother and transferred the business to my brother and myself, after paying these liabilities. He destroyed that agreement and made this other will. The Court": Did you tell them that? The witness: Certainly we told them. * * * I told my sisters that as he had transferred the business to us originally and destroyed the transfer, that we didn’t think that we ought to be obliged to cany these additional liabilities which the will put upon us, therefore We wanted an agreement made with the family whereby we could, run the business as owners of it and take the responsibility of the debts. ■ W e told them if the business went to the creditors,' they wouldn’t get anything ; that if we took it, they would get a thousand ($1,000) dollars a year for the reason that if we didn’t take it, the trust would be dissolved anyway, and the thousand ($1,000) dollars in the will only goes to them as long as the trust exists and then the will states that the business is to be divided. * * * The agreement was all read and gone over and they all agreed to it at' that timé. I was present * * * when the agreement was signed. There fvasn’t anything said by anybody but my mother and sister at that time. My sister asked * * * something about the thousand ($1,000) dollars going to her heirs. As near as I can remember, he told her no, that it would not.” The: plaintiff May M. Gúgel testified that the agreement was not read on the day of the funeral; that.the first she knew of its contents was when her brother,' the defendant Jesse, brought it to her to sign. She says: “My brother handed the paper to me and said, ‘ Here is a paper. I would like, you to sign. Read it through.’ I read it over and he said, ‘ Do you understand it?’ and I said, ‘ Well, I don’t know, what is in it anyway?’ ahd he said, ‘Well, if the business was to be divided, mother’s share would. be five-fifteenths, your share would be about two-fifteenths and you wouldn’t be able to get any money for some time,’ and he said further, ‘If you sign this paper you will get payments the.same as the will provided and they will be given immediately.’ * * * My brother further said that ‘ Mother and. Daisy have signed it ’ and I said, ‘ Yes, I guess it is all right,’ so he went out and brought back.a notary public and I signed the paper. Q. Did you know anything about the contents of that paper before it was brought to you by your brother? A. Ho: Q. Did you understand what it meant? * * * A. Ho, I did not. The Court: You had no counsel? Witness:' Ho, none at all. Q. Had you ever consulted with anybody about this paper? A. Ho. Q. You signed it immediately when your brother brought it to you upon reading it? A. Yes, sir. Q. Did you know anything about the business of the Hiscox Chemical Works? A. Ho, I did not. Q. Your father had never talked to you about.it before his deatk concerning the profits or anything connected with the business? A. Ho¡ Q. Were you present the night that your fathers will was read in Patchogue? A, Yes, sir. The Court: What did your brother tell you, if anything, ■about the profits of the business before you signed the agreement? Witness: He didn’t say anything about the profits;” that one of the attorneys “ made a suggestion about the business being divided up. They were talking about the business being divided up and he said, he made some suggestion that the boys, that is my two brothers, thought they were entitled to the business at the end of twenty-five years instead of being divided as the will provided. They thought they were entitled to the whole thing; ” and in regard to her signing the deed: “ Q. On April 30, 1906, did you sign a deed to the property ? A. I did. Q. Had you said anything prior to this to your sister concerning the signing of that deed ? A. I said I didn’t think I would sign it as I had already signed enough papers. Q. Was anything said to you then about the signing of it? A. Ho, she mentioned it to my brother, and he said if I didn’t sign it the payments would stop as I had already agreed to sign it in the agreement.” The plaintiff Daisy E. Hiscox testified that she knew nothing of the agreement or its contents until the day before she signed it, January thirty-first, when she was informed by the defendants that there was such a paper to sign. She says: They told .me that the will was void because of the confiiction of the two papers, that is, the will and this other paper, and they said that the will was void, therefore I wnuld have — They were going to make out these papers and fix everything all right, so they made out these papers and appointed a day for me to sign. * * * Q. You had no legal advice at all ? A. Hone at all. I didn’t think it was necessary. Q. Had you talked with anybody concerning the signing of this agreement before you signed it? A. Ho, sir ;” that she knew nothing about the contents of it except that there was some difference between that and the will; that the agreement was read to her, she says, “ as I requested it as I thought I could understand it better if he read it. I interrupted him several times during the reading of it. I asked him to explain certain parts. He explained them. Q. Did you understand it ? A. Ho, I didn’t understand. Q.. Did yon understand what the whole purport of that agreement was, as a matter of fact ? A. Hot at all. Q. Did you ask him whether there was any difference between ■ that agreement.and the will of your father? A, I asked him what the difference was and he explained it to me. Q. What did he say to you? A. He said it was just the same as the will except that-Mr. Hughes Was left out.. There was some sort of a compromise made with Mr. Hughes. Q. Did he make any statement concerning any heirs ? A. Yes, sir. Mother asked him a question, and his answer was, it would go to my heirs, the same as the will. After I had signed the agreement I asked Mrs. Hughes about it. * ■* * She told me what the paper contained, and that was the first time that I knew the meaning of what I had signed. I did not believe what she told me concerning it. * * * Q. You have heard the testimony of Mr. Pelletreau and your brothers concerning the reading of this agreement, which we are seeking to set aside, on the night of your father’s funeral. Do you remember any such agreement being read ? • A. It was not read nor talked about. Q. What was read there that night ? A. The Rawolle agreement and 'the Will, and then my brothers discussed This other matter. They were displeased with the will. The Court: Did yon plainly, understand that if this went through HI that you were ever going to get was one thousand ($1,000) dollars a year while you -were living ? The Witness: Ho, I didn’t understand. The Court: What did you think you were going to get? The Witness: I thought "that I was to receive the same as the will. After the debts were paid I was to receive an equal share" in. the business. I understood it to be the same as the will, except that Mr. Hughes was left out of it. I understood there was some sort of a compromise with Mr. Hughes.” Mrs. Hughes did not sign either, the agreement or deed.

It is undisputed that in the three years following their father’s death the defendants (for the services for which they .had been severally paid $2,000 per year in their father’s lifetime, and the value of which he placed at $3,000 each per year in his will), in addition to each taking from the income of the business $6,000, which they term wages, divided between themselves practically $100,000; ■ that after payment of this sum and the running expenses there remained as the net profits of the business an average of $9,000 a year, and that the yearly profits are rapidly increasing in amount. Ho payments have been made or money set aside for meeting the payments provided for by the Rawolle agreement commencing May 15,1910,-and only $20,000 has been paid bn the Dauchy claim. Under the guise of increased salaries — increased by themselves — the defendants have concededly withdrawn from the profits of the business and applied to their own use, each year, $35,000, while the plaintiffs have each received the sum of $1,000 per year. The defendants testify that for many years prior to their father’s death they had conducted and managed his business; had accurate and complete knowledge of all matters connected therewith, its condition, earning power, and the large profits it was producing and was capable of producing in the future. It is uncontradicted that their sisters, the plaintiffs, were in absolute ignorance of all of these matters, had no knowledge or information concerning their father’s financial affairs or the extent of his estate; that they were at no time informed or in any manner made conversant with such facts, and had no means of knowing whether the business was profitable or unprofitable; that they believed and relied implicitly upon what the defendants told them, reposed great confidence in them, and were induced to and did act as they did because of such confidence, and with no knowledge of the essential facts — possessed by their brothers. The agreement was prepared by the defendants without the knowledge, of the other members of the family and without consultation with them; the defendants were represented by. two attorneys, while the plaintiffs had none, and consulted with no one regarding the matters involved; they were called upon to act at a time when their mental condition was necessarily disturbed and weakened by the death of their father; their father was unburied when their attention was first directed to the matter, and they were called upon to execute the agreement within a week thereafter. They acted without the benefit of equal knowledge, and it is very apparent , that they did not deal on terms of equálity with their brothers. They testify that they did not mistrust the agreement because of their reliance upon the statements .made them and their confidence in the defendants, and that they supposed and understood that the payments made to them, after the agreement was executed, were made under the will, and not under the agreement, which is not at all improbable, the amounts being the same.

That the agreement was a very unwise, disadvantageous and, if upheld, a very disastrous one to the plaintiffs, is very apparent. The amount received by the defendants from the profits of the business for the three years following their father’s death, as testified to by them, is as follows: . ■ .

Wages, $2,000 each per year...........:..........■ . $12*000 00

Salary, together, $33,000 per year............99,000 00

In addition to which there was a net yearly profit of '■'• $9,000................................. 27*000 00

'A total of.......... ...:.v ................. $138,000- 00

Under the will the-defendants would have received $3,000 each per year.. $18,000 00 ■

■ Increased by increased profits: '•

In 1906, nothing — profits $27,000.. - :'.

In 1907, profits $35,000......A____V. 590 00

In 1908, profits $40,000._______'____1,520 00 -

$20,110 00 .

The incompetent son. would have • received............................. - 3,000 00. ... .

Mr. Hughes..^......,........... 6,0.00. 00

The widow until her death........... . 10,000. 00

The three daughters, $1,000 each..... 3,000 Ó0 , . . . .

_ ----- 4,2110 00

Leaving................................... $95,890 00

to apply upon the debts' of the testator, an average of practically $30,000 per year. It would thus appear, that •■this; .valuable estate might, have been distributed by June 1, 1911, for. although the $130,000 debt, payable in monthly installments commencing in May, 1910, would not then have been wholly due and payable/ the fair presumption is that the creditor would have permitted it to-be then paid in full. The plaintiffs would then each have come into possession of one-fifth of the business and plant, after deducting a sum sufficient to produce the yearly income of $1,000 for- the incompetent son. It is idle to argue that the business and plant were, at the time of the testator’s death, of littlé value. Less than six years before he had paid $180,000 for his copartner’s interest; and a business capable of producing average yearly net profits of $46,000, constantly increasing, with trade marks, .formulas and recipes of great value, the good will of the business, presumably very large.(Matter of Hiscox, 135 App. Div. 848), and the real and personal property forming the plant, constitute a valuable plant and lucrative business. ■ The plaintiffs have each relinquished and transferred to the defendants, by the agreement, the one-fifth part of this plant and business in consideration of each being paid the' same amount directed by the will, $1,000 per year, for and during their natural lives, or as long as said business shall remain" profitable and in the .possession and control of the parties of the second part.” There is no restriction iii the agreement of the right of the defendants to sell the plant and business at any time; and if they saw fit to do. so, by its passing out of their possession and control, the rights of the plaintiffs in the estate of their father and, under the agreement, against the defendants, would terminate and be absolutely extinguished. It seems to me that the agreement is uncon-, 'scionable, unjust, and without adequate consideration, and that it was obtained by the defendants through deception, and by taking advantage of their superior knowledge and their sisters’ ignorance of the business and its value. The court cannot lend its aid' to secure to them the enjoyment of benefits obtained through their betrayal of the confidence and trust reposed in them by their mother and sisters.

It is difficult to conceive a state of facts more clearly bringing a case within the rule that whenever the relations between the contracting parties appear to be of such a character as to render it certain that they do not deal on terms of equality, but that either on the one side from superior knowledge of the matters derived from a fiduciary relation, or on the other from dependence or trust, justifiably reposed, unfair advantage is rendered probable, the transaction is presumed void, and it is incumbent upon the stronger-party to show affirmatively that no deception was practiced, and all was open, fair and understood. (Cowee v. Cornell, 75 N. Y. 91, 99.) This rule was .considered and applied by this court in Dolan v. Cummings (116 App. Div. 787; affd., without opinion, 193 H. T. 638), and is a controlling authority in the case at bar. This burden the defendants failed to sustain, and the presumption that the agreement and deed were void was not overcome by the evidence. The fact that the plaintiffs did not, before signing the agreement and deed, familiarize themselves with their contents and effect on their rights under the will, does not preclude them from attacking their validity. ■ (Albany City Savings Inst. v. Burdick, 87 N. Y. 40; Smith v. Smith, 134 id. 62; Wilcox v. American Tel. & Tel. Co., 176 id. 115.)

It is contended that the plaintiffs are estopped from attacking the agreement because of their having received and retained the property to which under its provisions they became entitled without tender or return of the same to the defendants or the. estate they represent, and the trial court found the existence of the facts involved in the proposition. In making this finding the learned trial justice must have overlooked the fact that upon the trial, and following his statement when' the question was raised, “ I will allow him to set himself right by offering now to return anything they .have received,” there Was a tender made in open court of everything the plaintiffs had received under the agreement, and the complaint was permitted to be amended accordingly, and that he refused to allow the trial to proceed at that'term until the exception taken by the respondents to the-allowance of such amendment was expressly waived. Further than this the plaintiffs owed no duty to return the money received, for the reason that they were entitled to receive and retain it under the provisions of the will, the amounts being the same. (Kley v. Healy, 127 N. Y. 555, 561.)

There is no merit in the contention that the. agreement for and division of the mining stocks and other property between the parties presents an executed agreement to set aside the terms and provisions of the Will. In Matter of Hiscox (supra) it was held that, conceding this contention, the agreement should not be extended beyond the property immediately affected thereby, and it has no bearing and constitutes no defense to the plaintiffs’ cause of action presented by the record.

The exceptions present reversible error-; the judgment must,, therefore, be reversed and a new trial granted, costs to abide the final award of costs.

Hibschbero, P. J., Woodward, Thomas and Carr, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the final award of costs.  