deceased persons and persons under guardianship." If the action, given by the statute for the exclusive benefit of the widow and next of kin in case of the death of a person by the neglect or wrongful act of another, is no part of the estate of the deceased, it would follow that the probate court had no jurisdiction to make an order settling the cause of action. The cause of action does not belong to the deceased in his lifetime, but only accrues at his death, and the amount of the damages recovered are no part of his estate, to be administered and applied to the payment of debts and legacies. The administrator holds the proceeds of the action, when they are turned over to him, as trustee for the widow and next of kin, and not in trust for the estate of the deceased. The cause of action is given to the personal representative of the deceased as a matter of convenience. It might have been given to any other person or public officer in trust for the widow and next of kin, or directly to one of them in trust for all. The mere fact that the statute has given the cause of action to the administrator in trust does not give to the probate court power to administer the trust, and the administrator may make a valid settlement of the cause of action without the approval of the probate court. Hutchins v. St. Paul, M. & M. Ry. Co., 44 Minn. 5, 46 N. W. 79; State v. Probate Court of Dakota County, 51 Minn. 241, 53 N. W. 463; Foot v. Great Northern Ry. Co., 81 Minn. 493, 84 N. W. 342, 52 L. R. A. 354, 83 Am. St. 395.

It was held in the first case cited that a probate court had jurisdiction to appoint an administrator to prosecute the statutory action for the benefit of the widow (surviving spouse-R. L. 1905, § 4503) and next of kin, although the deceased left no property within the state and was not an inhabitant thereof. This was upon the ground that such cause of action would be deemed assets of the deceased to the extent of giving the probate court jurisdiction to appoint an administrator. It does not follow, from this conclusion, that the probate court has jurisdiction to direct a settlement of the cause of action, which vests in the administrator, when appointed, as trustee for the widow and next of kin, or affect one already made by approving it. The administrator, as trustee, then, had the right to settle and discharge the cause of action here in question without the approval of the court; and, having settled and released it, how could an order of the probate court, made two days after the release was executed and delivered, affect its validity one way or the other? We are of the opinion that the probate court had no jurisdiction to make the order approving the settlement and release, and, further, that such order does not affect the validity of the release in question, and that, if it was in fact obtained by fraud, the plaintiff herein may avoid it in this action, as indicated in the case of Aho v. Jesmore, supra. Order affirmed.

CHRISTINE ANDERSON v. G. HEILEMAN BREWING COMPANY and

Defective Complaint.

Others.1

May 29, 1908.

Nos. 15,405-(40).

A complaint in an action for fraud and deceit hold not to state a cause of action, for the reason that it fails to allege or show that plaintiff suffered loss or damage by reason of the fraud complained of.

Action in the district court for Hennepin county to recover $1,500 for fraud and deceit. From an order, Dickinson, J., overruling defendants' demurrer to the complaint, they appealed. Reversed. P. W. Guilford and George H. Gordon, for appellants. Mead & Robertson, for respondent.

BROWN, J.

Appeal from an order overruling a general demurrer to plaintiff's complaint.

The complaint alleges substantially the following facts. That on or about December 15, 1906, one Jacob Barge was conducting a saloon in the city of Minneapolis, was an agent and customer of the defendant G. Heileman Brewing Company, and sold and disposed of large quantities of beer furnished by that company; that defendant Charles Lowry was the local agent at Minneapolis of the brewing company, the headquarters of which are at La Crosse, in the state of Wisconsin; that plaintiff is a woman, by occupation a trained nurse, and wholly without experience in commercial or business affairs, or in transactions such as those had with defendants concerning which she now complains. It further alleges that on the date stated the defendants represented to her that the business conducted by Barge was the best place in Minneapolis, a paying concern; that Barge was prosperous, not involved in debt, except in certain respects mentioned; and that, if plaintiff would enter into a copartnership with him and conduct jointly with him a saloon and restaurant, she would realize large profits from the investment. It further alleges that she relied upon the representations made to her, and was thereby induced to and did enter into a copartnership with Barge to conduct the said business, Barge to manage the saloon and plaintiff the adjoining restaurant. It further alleges that by means of such representations she was induced to "advance to the said Jacob Barge the sum of $768," with which to pay a claim then due from him to defendant brewing company. The complaint then goes on to charge that the representations were false and untrue, and known by defendants and each of them to be false and untrue when made, and that plaintiff relied upon and was deceived thereby; that Barge was owing a large number of creditors and was heavily in debt; that the place conducted by him was not successful; and that Barge had never made any money in its operation. It further alleges that the false and fraudulent statements already mentioned were made to plaintiff to induce her to advance to Barge the amount of money stated, to the end that he might pay the same over to the brewing company. It also alleges that after entering into the copartnership plaintiff paid out other sums of money in discharge of other debts due and owing by Barge, amounting in all to the sum of $732. The prayer for relief is that plaintiff have judgment against defendants for the sum of $1,500, the amount loaned to and paid out for Barge, which she alleges is the damage occasioned her by the fraudulent acts and conduct of defendants.

The action is for fraud and deceit, the essential ingredients of which are thoroughly settled. In order to maintain an action of that sort, it must appear that defendant made material representations to plaintiff, which were false and known to be false by him at the time they were made; that plaintiff relied thereon, and was induced thereby to enter into the transaction; and, lastly, that by reason thereof she suffered injury or damage. Busterud v. Farrington, 36 Minn. 320, 31 N. W. 360; 20 Cyc. 12; note to Dawe v. Morris, 4 L. R. A. 158. The complaint before us is full and complete in all respects, save that it contains no allegation that plaintiff has been in any manner damaged or injured. She alleges that she was induced by representations made by defendants to "advance" a certain amount of money to Barge. This advancement was in legal effect nothing more than a loan (Morrow v. Turney's Admr., 35 Ala. 131; Rogers v. Bank, 108 N. C. 574, 13 S. E. 245; Wright's Appeal, 93 Pa. St. 82; 1 Сус. 966), which Barge could be compelled to repay. But the complaint contains no allegations that plaintiff had been unable to recover the amount, or that Barge has refused to pay it. For aught that appears from the complaint, Barge is perfectly solvent and able to repay the money, and, if so, plaintiff has suffered no injury and cannot maintain this action. The complaint does not allege that plaintiff was induced by the false and fraudulent representations to advance the sum of $732, which the complaint alleges she did advance for the purpose of paying some creditors after she had entered into the copartnership. But, even if the complaint be construed as so alleging the fact, the situation with reference to that amount is the same as to the amount originally advanced to enable Barge to pay his debt to the brewing company. There can be no recovery in actions of this kind without a showing of injury to the complaining party. The fraud and injury must concur. Alden v. Wright, 47 Minn. 225, 49 N. W. 767; Doran v. Eaton, 40 Minn. 35, 41 N. W. 244; Taylor v. Guest, 58 N. Y. 262. The measure of plaintiff's damages would be the amount of money she was induced to part with, and the complaint cannot be sustained on the theory that she is entitled to at least nominal damages. Alden v. Wright, supra.

The trial court should have sustained the demurrer, and the order appealed from is accordingly reversed.

S. CHRISTOPHERSON v. HANS M. OLSON.1

May 29, 1908.

Nos. 15,549-(72).

Partnership-Action for Money Received.

Plaintiff sued defendant for money alleged to have been received by defendant as plaintiff's agent in effecting a settlement of plaintiff's claim against a third person. Defendant's case was that plaintiff and defendant were partners in a real estate transaction out of which had arisen the claim which defendant had settled. It did not appear that the partnership affairs had been liquidated, its debts paid, or its real estate converted into cash. No equitable relief was sought. It is held that the trial court properly directed a verdict for the plaintiff.

Action in the district court for Hennepin county to recover $1,500. The case was tried before Frederick V. Brown, J., who directed a verdict in favor of plaintiff for $1,545. From an order denying his motion for a new trial, defendant appealed. Affirmed.

Smith & Thompson and Hall & Kolliner, for appellant.
Gjertsen & Lund, for respondent.

JAGGARD, J.

Plaintiff's (respondent's) complaint set forth that he had appointed defendant (appellant) as his agent to effect a settlement of a certain claim against one Storaasli on account of certain lands; that he authorized defendant, as his agent, to accept the sum of $1,500 from Storaasli in settlement of said claim; that defendant, as his agent, received the said sum, but refused to pay it to plaintiff.

The case of appellant and defendant was this: Storaasli, wishing to secure the Buck Block in Minneapolis, entered into a written agreement with defendant by which he agreed to take the property subject to $8,000 in mortgages, and to convey to defendant two quarter sections of land in the state of Oregon, and to pay defendant $320 as commission. Defendant, a real estate agent, could have purchased the block for about $8,000 and have made a commission of $225 from