Colt, J.
The defendants contend that the motion of the executor that he be allowed to prosecute the suit was improperly allowed, on the ground that the action did not survive at common law or under the provisions of the Gen. Sts. c. 127, § 1. But this is not an action to recover damages for a simple fraud practised upon the testator, by which he was induced to part with his property at less than its value. It is a suit to recover in equity specific property, or the avails of specific property, still held by one or more of the defendants, parties to the original fraud, and which was obtained from the plaintiff in the abuse of a trust arising out of an existing confidential relation between him and one of the defendants, as well as damages for the breach of the trust. The liability of a trustee in equity for a breach of duty causing damage is not terminated by the death of the party wronged. The case of Leggate v. Moulton, 115 Mass. 552, cited by the defendants, was an action at law to recover damages for false representations relating to the pecuniary ability of a third person, whereby the plaintiff was induced to part with real estate. It was held that such an action did not survive under the statute. This case is to be distinguished on the grounds stated, and the executor was here properly admitted to come in and prosecute the suit, and under the recent statute to come in on motion without bringing a bill of revivor. St. 1865, c. 42. Pingree v. Coffin, 12 Gray, 288, 317. Sears v. Carrier, 4 Allen, 339. Walsham v. Stainton, 1 De G., J. & S. 678.
It remains to dispose of the defendants’ exceptions taken to the competency and sufficiency of the plaintiff’s evidence. The defendants produced no evidence. In the opinion of the court, the evidence of the plaintiff, considering the nature of the facts to be proved, was sufficient to warrant the findings of the jury upon all the issues necessary to support a decree in his favor. As to the participation of the two Gleasons in the false repre* [175]*175sentations made to the plaintiff, and in the fraud by which one of them, while employed to sell a valuable estate for the plaintiff, was to share in the profits or proceeds of the sale to the other, there was proof of previous arrangements, private consultations, and an actual division of the proceeds of the transaction.
As to the participation of the defendant Pearson in the same fraud, there was evidence that he was present when the deed was passed; that he inserted a false consideration for his deed according to the valuation fixed by his agent, Gleason, for the purpose of the trade with the plaintiff; that he divided the profits with the other defendants; and, above all, that Gleason was acting as agent for him in disposing of the Chickering Place estate, for whose fraud, perpetrated while employed in the work of his agency, he, as principal, was legally responsible. Commonwealth v. Mason, 105 Mass. 163, 169.
As to the false representations employed, the evidence was, that Gleason, while occupying a fiduciary relation towards the plaintiff as agent to sell, which required him to exercise the highest good faith to secure the best terms for his employer, and while enjoying the confidence of the plaintiff incident to that relation, fraudulently misrepresented the value and annual rental of the Chickering Place estate, the character of the house and of the neighborhood, the fact that a responsible party was in want of the place for a hotel, and that the adjoining house was a boarding-house, and further that the plaintiff trusted these representations, and was induced to part with his estate in exchange for the estate described.
The defendants contend that the representations proved did not constitute a fraud nor warrant the submission of the question to the jury, because they were expressions of opinion and estimate only ; and they cite the late case of Parker v. Moulton, 114 Mass. 99, with others of the same class, which were all cases of affirmations made between buyer and seller respecting the real estate of which the defendant was the seller. As between such parties, statements which concern the value of the land, or its condition or adaptation to particular uses, which are only matters of opinion and estimate, are not actionable. The maxim caveat emptor applies. The buyer is not excused from examina[176]*176tian for himself unless he be fraudulently induced to forbear inquiries which he would otherwise have made. The parties to the transaction are put on their guard; there is no breach of confidence, no abuse of an express or implied trust between them. The cases cited have no application to a suit in equity brought to enforce a trust. They do not show that such representations, made by an agent to his principal, under, the circumstances here disclosed, must not be treated as an actionable wrong in a court of equity. It is said, indeed, that where this relation exists, and there is any misrepresentation or concealment of a material fact, or any just suspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void, and as far as possible restore the parties to their original rights. Emery v. Parrott, 107 Mass. 95. Ormond v. Hutchinson, 13 Ves. 47, 51. Beaumont v. Boultbee, 5 Ves. 485. 1 Story Eq. Jur. § 218.
The question whether Pearson had been settled with by the plaintiff for an alleged incumbrance on the land conveyed to him, and whether the evidence warranted the finding, in the view we take of the case, becomes immaterial. The plaintiff cannot rescind the whole contract for the exchange of property. The parties cannot be restored to their former condition, because the plaintiff’s original estate has passed into the hands of an innocent party.
The foregoing considerations dispose of part of the objections taken to the evidence admitted at the trial and to most of the specific requests for instructions.
The request for the instruction that there was no ground for presumption against the defendants from the fact that they produced no witnesses, could not be properly given. The neglect of a party to produce evidence which is in his own power, is a fact to be considered by the jury in connection with all the other facts, and in a case of fraud, the parties to which are within reach as witnesses, may be of great weight against him. Smith v. Whitman, 6 Allen, 562, 564.
The court, we must presume, gave full instructions upon all questions submitted. It does not appear that they were erroneous, or that the instructions requested should have been given, except as they were given in full, or were modified by the judge
[177]*177The evidence objected to nearly all related to the value of the estates which were exchanged. Upon the question of fraud, the actual relative value of the property exchanged had some bearing upon the motives and intentions of the parties. The plaintiff’s testimony on this point was admissible. The dealings of Mrs. Oharlebois with one of the Gleasons in the purchase of the plaintiff’s estate from him, and the payment therefor, were admissible, as showing the value of the property and the relations of the two Gleasons to each other in the transaction. It does not appear that this evidence was objected to because the deeds referred to were not produced. The plaintiff’s evidence which was objected to was all admissible on the question of fraud and as showing the accompanying circumstances.
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Colt, J.
The defendants contend that the motion of the executor that he be allowed to prosecute the suit was improperly allowed, on the ground that the action did not survive at common law or under the provisions of the Gen. Sts. c. 127, § 1. But this is not an action to recover damages for a simple fraud practised upon the testator, by which he was induced to part with his property at less than its value. It is a suit to recover in equity specific property, or the avails of specific property, still held by one or more of the defendants, parties to the original fraud, and which was obtained from the plaintiff in the abuse of a trust arising out of an existing confidential relation between him and one of the defendants, as well as damages for the breach of the trust. The liability of a trustee in equity for a breach of duty causing damage is not terminated by the death of the party wronged. The case of Leggate v. Moulton, 115 Mass. 552, cited by the defendants, was an action at law to recover damages for false representations relating to the pecuniary ability of a third person, whereby the plaintiff was induced to part with real estate. It was held that such an action did not survive under the statute. This case is to be distinguished on the grounds stated, and the executor was here properly admitted to come in and prosecute the suit, and under the recent statute to come in on motion without bringing a bill of revivor. St. 1865, c. 42. Pingree v. Coffin, 12 Gray, 288, 317. Sears v. Carrier, 4 Allen, 339. Walsham v. Stainton, 1 De G., J. & S. 678.
It remains to dispose of the defendants’ exceptions taken to the competency and sufficiency of the plaintiff’s evidence. The defendants produced no evidence. In the opinion of the court, the evidence of the plaintiff, considering the nature of the facts to be proved, was sufficient to warrant the findings of the jury upon all the issues necessary to support a decree in his favor. As to the participation of the two Gleasons in the false repre* [175]*175sentations made to the plaintiff, and in the fraud by which one of them, while employed to sell a valuable estate for the plaintiff, was to share in the profits or proceeds of the sale to the other, there was proof of previous arrangements, private consultations, and an actual division of the proceeds of the transaction.
As to the participation of the defendant Pearson in the same fraud, there was evidence that he was present when the deed was passed; that he inserted a false consideration for his deed according to the valuation fixed by his agent, Gleason, for the purpose of the trade with the plaintiff; that he divided the profits with the other defendants; and, above all, that Gleason was acting as agent for him in disposing of the Chickering Place estate, for whose fraud, perpetrated while employed in the work of his agency, he, as principal, was legally responsible. Commonwealth v. Mason, 105 Mass. 163, 169.
As to the false representations employed, the evidence was, that Gleason, while occupying a fiduciary relation towards the plaintiff as agent to sell, which required him to exercise the highest good faith to secure the best terms for his employer, and while enjoying the confidence of the plaintiff incident to that relation, fraudulently misrepresented the value and annual rental of the Chickering Place estate, the character of the house and of the neighborhood, the fact that a responsible party was in want of the place for a hotel, and that the adjoining house was a boarding-house, and further that the plaintiff trusted these representations, and was induced to part with his estate in exchange for the estate described.
The defendants contend that the representations proved did not constitute a fraud nor warrant the submission of the question to the jury, because they were expressions of opinion and estimate only ; and they cite the late case of Parker v. Moulton, 114 Mass. 99, with others of the same class, which were all cases of affirmations made between buyer and seller respecting the real estate of which the defendant was the seller. As between such parties, statements which concern the value of the land, or its condition or adaptation to particular uses, which are only matters of opinion and estimate, are not actionable. The maxim caveat emptor applies. The buyer is not excused from examina[176]*176tian for himself unless he be fraudulently induced to forbear inquiries which he would otherwise have made. The parties to the transaction are put on their guard; there is no breach of confidence, no abuse of an express or implied trust between them. The cases cited have no application to a suit in equity brought to enforce a trust. They do not show that such representations, made by an agent to his principal, under, the circumstances here disclosed, must not be treated as an actionable wrong in a court of equity. It is said, indeed, that where this relation exists, and there is any misrepresentation or concealment of a material fact, or any just suspicion of artifice or undue influence, courts of equity will interpose and pronounce the transaction void, and as far as possible restore the parties to their original rights. Emery v. Parrott, 107 Mass. 95. Ormond v. Hutchinson, 13 Ves. 47, 51. Beaumont v. Boultbee, 5 Ves. 485. 1 Story Eq. Jur. § 218.
The question whether Pearson had been settled with by the plaintiff for an alleged incumbrance on the land conveyed to him, and whether the evidence warranted the finding, in the view we take of the case, becomes immaterial. The plaintiff cannot rescind the whole contract for the exchange of property. The parties cannot be restored to their former condition, because the plaintiff’s original estate has passed into the hands of an innocent party.
The foregoing considerations dispose of part of the objections taken to the evidence admitted at the trial and to most of the specific requests for instructions.
The request for the instruction that there was no ground for presumption against the defendants from the fact that they produced no witnesses, could not be properly given. The neglect of a party to produce evidence which is in his own power, is a fact to be considered by the jury in connection with all the other facts, and in a case of fraud, the parties to which are within reach as witnesses, may be of great weight against him. Smith v. Whitman, 6 Allen, 562, 564.
The court, we must presume, gave full instructions upon all questions submitted. It does not appear that they were erroneous, or that the instructions requested should have been given, except as they were given in full, or were modified by the judge
[177]*177The evidence objected to nearly all related to the value of the estates which were exchanged. Upon the question of fraud, the actual relative value of the property exchanged had some bearing upon the motives and intentions of the parties. The plaintiff’s testimony on this point was admissible. The dealings of Mrs. Oharlebois with one of the Gleasons in the purchase of the plaintiff’s estate from him, and the payment therefor, were admissible, as showing the value of the property and the relations of the two Gleasons to each other in the transaction. It does not appear that this evidence was objected to because the deeds referred to were not produced. The plaintiff’s evidence which was objected to was all admissible on the question of fraud and as showing the accompanying circumstances. So was the lease from Pearson to Graham, which was unexpired at the time of the transaction. Stebbins v. Miller, 12 Allen, 591, 598.
Decree to be entered for the plaintiff.
On November 8, 1877, the following decree was entered: “The above case having been fully heard by the court, it is ordered, adjudged and decreed that the defendant Kiles P. Glear son do forthwith convey to the plaintiff’s representative the mortgage described in the plaintiff’s bill as given by the defendant Oharlebois to the said K. P. Gleason; also any and all other mortgages held by him upon the real estate described in said bill, and conveyed by said Cheney to the said K. P. Gleason; also the promissory notes or other evidences of indebtedness which said mortgage or mortgages secure. And it is further ordered, adjudged and decreed that the case shall then be referred to Theodore C. Hurd, as master, who shall ascertain the amount of damages suffered by the plaintiff, after deducting the value of the mortgage or mortgages assigned by the said K. P. Gleason to the plaintiff, in accordance with this decree. And it is decreed that the defendants, Loring W. Gleason, Kiles P. Gleason and Henry Pearson, shall pay to the plaintiff the amount of damages so ascertained, together with the costs of suit to be taxed by said master.”
On November 12, 1877, the defendants Kiles P. Gleason and Pearson appealed from this decree.
[178]*178The master, notwithstanding the appeal, proceeded to hear the parties, and on December 12,1877, made the following report:
“ I find that the mortgages and notes which the defendant K. P. Gleason was directed, by the decree, to convey to the plaintiff’s representatives, have not been so conveyed. I find the value of the estate in Reading, at the date of the conveyance alleged in the bill, to wit, October, 1871, to be $7000. I find that the defendants caused to be paid to the plaintiff the sum of $85 as the balance of proceeds of a mortgagee’s sale of the estate in Boston, named in the bill.
“ The defendant L. W. Gleason testified that he collected, for the plaintiff, the sum of $637, as rents of the Boston estate, and claimed to be entitled to have this sum deducted in estimating the damages. It appears that the defendant L. W. Gleason, from this sum, paid $225, as interest on the mortgages on the Boston estate, and retained the sum of $250 as his commission as a broker, for effecting the sale of the Reading estate. I disallow his claim to have these sums deducted, the case having found the whole of the transactions of sale fraudulent, and established his connection therewith. I find that he paid the plaintiff the balance of $637, to wit, $162.
“ I ascertain the plaintiff’s damages as follows:
“Value of Reading estate, $7000.00
“ Deduct amount received by the plaintiff,
“ Received from sale of Boston estate, $85.00
“ “ rents “ “ 162.00 247.00
6753.00
“ Interest on said sum from July 16,1872, 2185.71
$8938.71”
The master also reported the objections taken by the defendants, at the hearing before him, and their exceptions, as follows :
“ The defendants contended that the hearing should not proceed before the master pending their appeals from the decree of November 8, 1877. Against their objections, the hearing pro eeeded, the defendants excepting thereto.
“ The plaintiff offered in evidence the deed of Pearson t« Cheney, of the estate on Chickering Place, Boston. Against [179]*179the objection of the defendant K. P. Gleason, I admitted the deed, not for the purpose of showing the value of the Chickering Place property, but for the purpose of showing the consideration of the conveyance. To the admission of this deed the defendant K. P. Gleason excepted.
“ The defendant Pearson offered evidence of the value of the Chickering Place estate in 1871. I refused to admit any evidence of the value of the Chickering Place estate, as the verdict, upon the issues submitted, and the decree had rendered it incompetent and immaterial. To this refusal the defendant Pearson excepted.
“ The defendant K. P. Gleason testified that the. Reading estate was worth less than $4000. After his cross-examination, upon the consideration of the conveyance of said estate by him to the defendant Charlebois, the plaintiff offered the record of the deed from K. P. Gleason to Charlebois. I admitted this record against his objection and exception.
“ The defendant Pearson offered to prove that a watch worth $75 was given by him to the plaintiff Cheney, and contended that its value should be deducted and allowed in the assessment of damages. I ruled that the defendant Pearson was concluded by his answer, that this watch was given to Cheney as compensation for a lease which existed as an incumbrance on the Chickering Place property. To this refusal the defendant Pearson excepted.”
The defendants Kiles P. Gleason and Pearson filed exceptions to the master’s report substantially as above stated by the master, except the fifth exception of Kiles P. Gleason, which was as follows: “ Because the master has not allowed for and deducted the value of the watch referred to in the report, as he was bound to do upon the facts found by him.”
Hearing before Endicott, J., who overruled the defendants’ exceptions, and, at the request of the defendants, reported the same for the consideration of the full court, to be heard with the appeal. If the court should be of opinion that the decree dated November 8, 1877, should be affirmed, and that the exceptions were properly overruled, a decree was to be entered for the plaintiff in the amount found bv the master; otherwise, the case was to take such direction as the court might order.
A. A. Ranney, for K. P. Gleason.
C. S. Lincoln, for Pearson.
T. S. Sweetser, (S. Bancroft with him,) for the plaintiff.
Morton, J.
The appeal from the decree of November 8,1877. does not open any questions upon the merits of the case. Stanley v. 8tarJe, 115 Mass. 259. All such questions were heard and adjudicated at the former hearing. The decree in its substantial parts clearly follows the frame of the bill and is justified by the record. The only valid objection to it is found in the provision that the costs of suit are to be taxed by the master. This is an error, probably inadvertently committed by counsel in drawing the decree, and overlooked by the court, which may be corrected in the final decree.
After the decree was entered, the master proceeded to hear the parties upon the question of damages, and the defendants took several exceptions to his report.
1. The defendants contend that the master had no right to proceed, during the pendency of their appeal, on the ground that by the appeal all proceedings under the decree were to be stayed, under the Gen. Sts. c. 113, § 8. But we are of opinion that the decree was not a final decree, so that the appeal suspended the right of the court and the master to proceed to ascertain the damages sustained by the plaintiff. The decree does not determine the whole case. It contemplates that there is to be further action by the court through the master, and that another and final decree may be necessary in order to give the plaintiff the entire benefit of the decision. Grerrish v. Black, 109 Mass. 474. Forbes v. Tueherman, 115 Mass. 115. The spirit and purpose of the decree was, that the hearing upon the question of damages should proceed at once, and the pendency of the appeal presented no obstacle to a full and fair hearing which would fix the amount of damages and thus render the case ready for a final decree upon the determination of the appeal. The defendants declined to produce and exhibit to the master the mortgages which they were required by the decree to assign, and he could not therefore follow the letter of the rule of reference and “ ascertain the amount of damages suffered by the plaintiff, aftei deducting the value of the mortgage or mortgages assigned by the said K. P. Gleason to the plaintiff; ” but he proceeded to [181]*181ascertain the value of the estate in Reading. The defendants were not injured by this proceeding. The value of the estate in Reading is the fundamental element of the damages in any aspect of the case. The parties had a full opportunity to be heard, and to set aside the report would be to observe mere technicalities at the expense of substantial justice. We are therefore of opinion that this exception should be overruled, and that the report should stand as the basis of the final decree to be entered in the case.
2. The exception to the admission of the deed of the Chickering Place estate cannot be sustained. It was the deed of one of the defendants, and tended to show the value which the parties placed upon the Reading estate. Though probably of very little weight, it was competent.
3. The evidence offered by the defendant Pearson, of the value of the Chickering Place estate, was rightly rejected. The record shows that this estate was sold under a mortgage, and that the plaintiff received eighty-five dollars therefrom, which the master has credited to the defendants in his report. The value of the estate was immaterial and incompetent.
4. The deed of the Reading estate, given by K. P. Gleason to Charlebois, had some tendency to show the value which he put upon the estate, and was therefore competent.
5. We are of opinion that the fifth exception of the defendant K. P. Gleason should be sustained. The watch transferred by the defendant Pearson to the plaintiff was property which the plaintiff received on account of the Chickering estate, and, like the rents received, diminishes the loss sustained by him.
The result is, that all the exceptions to the master’s report are overruled except the fifth exception, which is sustained; but * p is not necessary that, on this account, the case should be recommitted to the master, if the plaintiff will remit from the amount found by the master seventy-five dollars, being the value of the watch as claimed by the defendants.
Upon his so doing, a decree may be entered, the form and details to be settled before a single justice, affirming the former necree with the modifications above suggested, and with the further modification that if the mortgage or mortgages named in the former decree are not assigned to him within ten days, he [182]*182may at Ms election take a decree and execution against the defendants for the full amount due Mm, or may apply to the court for further decrees necessary to protect his rights.
Decree accordingly.