Holmes, J.
The plaintiff’s evidence tended to show that the defendant’s invention was merely a mixture of ingredients, all of which had been used long before to allay the pain caused by filling teeth. But it did not stop at that point; it tended to show that the compound was worthless for the purpose for which it was intended to be used; for the testimony was, that the ingredients separately were of no use, and that the mixture was as bad or worse. To meet this last proposition, the defendant put on a number of his patients, who testified that the defendant’s operations upon their teeth, using his invention, were practically painless, whereas similar operations before had been very painful.
[28]*28Plainly this was not testimony of a kind which the witnesses needed to be experts to give. The objections made to it are, that it introduces the trial of collateral issues, and that the fact may admit of being explained by other causes than the conclusion sought to be established. In some cases, at least, it would seem that the painful fillings were performed by other dentists, so that it might be argued that the evidence was only a testimony to the skilfulness of the defendant’s hand. But no special objection of this sort was taken or argued, and, so far as the introduction of collateral issues goes, that objection is a purely practical one, a concession to the shortness of life. When the fact sought to be proved is very unlikely to have any other explanation than the fact in issue, and may be proved or disproved without unreasonably protracting the trial, there is no objection to going into it. If a dozen patients should testify that, when the defendant used his nabob, he filled their teeth without hurting them, and that he hurt them a good deal when he did not use it, supposing the testimony to be believed, and not to be explained by fancy and a general disposition on the part of the witnesses to think well of new nostrums, it would go far towards proving that nabob had some tendency to deaden pain. Indeed, the same thing is true in a less degree, if the painful operations were by another hand. Filling teeth, however skilfully done, is generally unpleasant. If it is found to be wholly painless when a certain compound is used, as the witnesses testified, probably the compound is at least in part the cause.
The evidence of Mrs. Thaxter as to the painlessness of Dr. Emerson’s operations was admitted subject to the doctor’s being called to prove that he used nabob. This was equivalent to a statement that it was not admissible unless the doctor was called. If the plaintiff had wished the evidence stricken out, or to have the jury instructed to disregard it, when the case was closed without calling the doctor, he should have asked for an instruction. The admission was proper at the time, and subject to the condition which was imposed.
It follows from what we have said, that the plaintiff’s exceptions must be overruled.
At the present trial of this case, the plaintiff elected to proceed on the fourth and fifth counts. The main questions raised by the [29]*29defendant’s exceptions, and argued by his counsel, are whether there was any evidence that the fraudulent representations specially alleged in the fourth count, and referred to in the fifth, helped to induce the plaintiff to enter into the transaction set forth in the fifth count, or so much of it as consisted in the acceptance of more stock; and whether there was any actionable representation concerning the real estate, as specially alleged in the fifth count. There is no question of pleading before us.
It is not denied that there was evidence tending to show that the defendant made false representations as to the stock, &e., in May, 1880, for the purpose of inducing the plaintiff to buy some of it. We cannot say, as matter of law, that such representations may not have continued to operate on the plaintiff’s mind in April, 1881, and may not have induced him to accept more stock. We cannot say so, as matter of law, even if the plaintiff had become a director and had acquired independent means of knowledge in the mean time, if in fact he continued to rely upon the defendant’s statements in dealing with him. Whatever may be the presumption, as between a director of a corporation and stockholders or others to whom he owes a duty, there is no such conclusive presumption that he knows the affairs of the company as will prevent his recovering against a person who in fact has defrauded him.
The plaintiff seems to have admitted that the alleged fraud as to the stock had no influence upon the transaction referred to in the fifth count. He put in evidence that he found out about the true condition of the company in July, 1880; and testified himself that he said, just before the transaction alleged took place, that the stock was not worth anything, that the defendant said naboli had failed them, and that he, the plaintiff, was induced to make the advances by his expectations as to the land which was the subject of the representations alleged in the fifth count. Coupling these facts with the verdict for the defendant on the fourth count, it is hard to believe that the alleged representations as to the stock had any practical weight or bearing upon the verdict for the plaintiff on the fifth count. We cannot say, however, that the plaintiff’s admission appears, on the bill of exceptions, to have been so distinct as to have taken away his right to argue, if so minded, that the representations [30]*30of 1880 were an operating influence in 1881, or that the judge was wrong in telling the jury that it was for them to consider how far the evidence connected the representations in the fourth count with any effective influence. It does not appear that the plaintiff’s counsel did in fact present any argument inconsistent with the plaintiff’s testimony. Nor was any ruling asked on the ground that the plaintiff was concluded by his own testimony.
A more important question is raised by the evidence given in support of the allegations of the fifth count. This was to the effect that the defendant said that he wanted to show the plaintiff where his $3000 was coming from (referring to the sum mentioned in the fourth count); that he had got $25,000 in a certain tract of land which he showed the plaintiff; that the plaintiff asked if the defendant owned it, and the defendant said that he had bought it, and that there was where the plaintiff’s $3000 were; that he had bought it for seven cents a foot, &c. The defendant admitted that he did not own the land at the time of this conversation with the plaintiff, although he gave a different account of what was said, so that, if the evidence had stopped there, the jury would have been warranted in finding that the defendant made false statements for the purpose of inducing the plaintiff to advance more money in the hope of getting back that which he had parted with before.
But the defendant further testified that he bought the land in question on April 26, 1881, and paid about $15,000 for it, about $6000 in money and the rest in a mortgage for $9000; and we understand that this date was not disputed, and that the purchase took place before the plaintiff made his advance on the faith of the defendant’s statement.
The defendant argues that the plaintiff has suffered nothing, because the statement was made good before it was acted upon. We are not prepared to say that the fact that one party to a transaction, A., has been guilty of a material fraud, is purged of its effect if the representation is made good before it is acted upon by the other party, B.
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Holmes, J.
The plaintiff’s evidence tended to show that the defendant’s invention was merely a mixture of ingredients, all of which had been used long before to allay the pain caused by filling teeth. But it did not stop at that point; it tended to show that the compound was worthless for the purpose for which it was intended to be used; for the testimony was, that the ingredients separately were of no use, and that the mixture was as bad or worse. To meet this last proposition, the defendant put on a number of his patients, who testified that the defendant’s operations upon their teeth, using his invention, were practically painless, whereas similar operations before had been very painful.
[28]*28Plainly this was not testimony of a kind which the witnesses needed to be experts to give. The objections made to it are, that it introduces the trial of collateral issues, and that the fact may admit of being explained by other causes than the conclusion sought to be established. In some cases, at least, it would seem that the painful fillings were performed by other dentists, so that it might be argued that the evidence was only a testimony to the skilfulness of the defendant’s hand. But no special objection of this sort was taken or argued, and, so far as the introduction of collateral issues goes, that objection is a purely practical one, a concession to the shortness of life. When the fact sought to be proved is very unlikely to have any other explanation than the fact in issue, and may be proved or disproved without unreasonably protracting the trial, there is no objection to going into it. If a dozen patients should testify that, when the defendant used his nabob, he filled their teeth without hurting them, and that he hurt them a good deal when he did not use it, supposing the testimony to be believed, and not to be explained by fancy and a general disposition on the part of the witnesses to think well of new nostrums, it would go far towards proving that nabob had some tendency to deaden pain. Indeed, the same thing is true in a less degree, if the painful operations were by another hand. Filling teeth, however skilfully done, is generally unpleasant. If it is found to be wholly painless when a certain compound is used, as the witnesses testified, probably the compound is at least in part the cause.
The evidence of Mrs. Thaxter as to the painlessness of Dr. Emerson’s operations was admitted subject to the doctor’s being called to prove that he used nabob. This was equivalent to a statement that it was not admissible unless the doctor was called. If the plaintiff had wished the evidence stricken out, or to have the jury instructed to disregard it, when the case was closed without calling the doctor, he should have asked for an instruction. The admission was proper at the time, and subject to the condition which was imposed.
It follows from what we have said, that the plaintiff’s exceptions must be overruled.
At the present trial of this case, the plaintiff elected to proceed on the fourth and fifth counts. The main questions raised by the [29]*29defendant’s exceptions, and argued by his counsel, are whether there was any evidence that the fraudulent representations specially alleged in the fourth count, and referred to in the fifth, helped to induce the plaintiff to enter into the transaction set forth in the fifth count, or so much of it as consisted in the acceptance of more stock; and whether there was any actionable representation concerning the real estate, as specially alleged in the fifth count. There is no question of pleading before us.
It is not denied that there was evidence tending to show that the defendant made false representations as to the stock, &e., in May, 1880, for the purpose of inducing the plaintiff to buy some of it. We cannot say, as matter of law, that such representations may not have continued to operate on the plaintiff’s mind in April, 1881, and may not have induced him to accept more stock. We cannot say so, as matter of law, even if the plaintiff had become a director and had acquired independent means of knowledge in the mean time, if in fact he continued to rely upon the defendant’s statements in dealing with him. Whatever may be the presumption, as between a director of a corporation and stockholders or others to whom he owes a duty, there is no such conclusive presumption that he knows the affairs of the company as will prevent his recovering against a person who in fact has defrauded him.
The plaintiff seems to have admitted that the alleged fraud as to the stock had no influence upon the transaction referred to in the fifth count. He put in evidence that he found out about the true condition of the company in July, 1880; and testified himself that he said, just before the transaction alleged took place, that the stock was not worth anything, that the defendant said naboli had failed them, and that he, the plaintiff, was induced to make the advances by his expectations as to the land which was the subject of the representations alleged in the fifth count. Coupling these facts with the verdict for the defendant on the fourth count, it is hard to believe that the alleged representations as to the stock had any practical weight or bearing upon the verdict for the plaintiff on the fifth count. We cannot say, however, that the plaintiff’s admission appears, on the bill of exceptions, to have been so distinct as to have taken away his right to argue, if so minded, that the representations [30]*30of 1880 were an operating influence in 1881, or that the judge was wrong in telling the jury that it was for them to consider how far the evidence connected the representations in the fourth count with any effective influence. It does not appear that the plaintiff’s counsel did in fact present any argument inconsistent with the plaintiff’s testimony. Nor was any ruling asked on the ground that the plaintiff was concluded by his own testimony.
A more important question is raised by the evidence given in support of the allegations of the fifth count. This was to the effect that the defendant said that he wanted to show the plaintiff where his $3000 was coming from (referring to the sum mentioned in the fourth count); that he had got $25,000 in a certain tract of land which he showed the plaintiff; that the plaintiff asked if the defendant owned it, and the defendant said that he had bought it, and that there was where the plaintiff’s $3000 were; that he had bought it for seven cents a foot, &c. The defendant admitted that he did not own the land at the time of this conversation with the plaintiff, although he gave a different account of what was said, so that, if the evidence had stopped there, the jury would have been warranted in finding that the defendant made false statements for the purpose of inducing the plaintiff to advance more money in the hope of getting back that which he had parted with before.
But the defendant further testified that he bought the land in question on April 26, 1881, and paid about $15,000 for it, about $6000 in money and the rest in a mortgage for $9000; and we understand that this date was not disputed, and that the purchase took place before the plaintiff made his advance on the faith of the defendant’s statement.
The defendant argues that the plaintiff has suffered nothing, because the statement was made good before it was acted upon. We are not prepared to say that the fact that one party to a transaction, A., has been guilty of a material fraud, is purged of its effect if the representation is made good before it is acted upon by the other party, B. There would be much force in the argument that, if B. had known of A.’s fraud before the bargain was complete, he would not have been likely to complete it, whatever the existing state of facts. People generally break off their dealings with those whom they find trying to cheat them. [31]*31The fact that A. has tried to cheat B. is material, it may be said, because it offers what, according to common experience, would be a strong motive for not proceeding further. See Bales v. Weddle, 14 Ind. 349. A partial analogy may be found in the case of purchases of goods with the fraudulent intention not to pay for them; the buyer gives the seller all-the legal rights which he purports to give him, yet the seller may avoid the sale. Dow v. Sanborn, 3 Allen, 181. Stewart v. Emerson, 52 N. H. 301. It is true, however, that in that case the implied representation of an intent to pay for the goods without -putting the seller to his legal remedies is still false at the moment when the sale is made.
But, whatever the law may be in the extreme case supposed, we think that the representations must at least be made good in the most complete and indisputable way, before the defendant can escape on that ground. We cannot say, as matter of law, that they were made good by a purchase in which, by the defendant’s own statement, the greater part of the price was secured by mortgage on the land. Considering the purpose of the whole conversation, which was to induce the plaintiff to advance more money, we cannot say that there was no evidence to warrant a finding that the defendant represented the land to be his own in such a sense as to secure the plaintiff a return of past and future advances, and that his subsequent purchase did not make that representation good.
The other exceptions may be disposed of in a few words. The defendant asked the judge to instruct the jury that there was no evidence of a want of novelty in his invention; but the judge refused so to do. The jury might have found that the defendant’s so-called invention was only an empirical mixture of known sedatives; that it gained no new quality from the compounding, but even neutralized in some degree the qualities of the several ingredients. If they believed this, they might have found that to mix the ingredients was an expedient obvious to any person knowing their respective effects, and was not patentable. If the patent was worthless, the stock was worthless.
The plaintiff’s failure to prove that he pledged stock to secure the loan to him which he procured as the first step towards advancing money to the defendant, was not material, if he proved [32]*32the substantive elements of bis case, — the defendant’s fraud, and bis own advance on the faith of it. See Cunningham v. Kimball, 7 Mass. 65; Packard v. Pratt, 115 Mass. 405.
The court put the plaintiff to an election between the fourth and fifth counts and the other-counts. Supposing that the defendant was entitled to require that the election when made should be final, which it would not be unless made to appear of record by striking out the other counts, Dows v. Swett, 127 Mass. 364, Mullaly v. Austin, 97 Mass. 30, the refusal of the court to order the other counts stricken out is no ground for a new trial. It did not affect the trial, it can be remedied now, and, in the event which has happened, it is immaterial to the defendant whether it is remedied or not.
Exceptions overruled.