William Ketcham, Respondent, v. William T. Troxell, Appellant

William Ketcham, Respondent, v. William T. Troxell, Appellant. (Argued May 27, 1872; decided June 4, 1872.) Plaintiff, induced by false representations of defendant as to the amount of business done by him, and that it was a profitable business, purchased of defendant the fixtures, furniture and good-will of an oyster and ice-cream saloon, and took a lease of the premises. For a portion of the purchase-money plaintiff gave his note, payable in two years, secured by a mortgage upon the property purchased. At the end of a year, plaintiff, discovering that the business was a losing one, and being unable to pay the rent due, entered into an agreement by which he was to have eight days time to sell out, and in case he failed, the note and mortgage should be considered due, and defendant could take possession of the mortgaged property, sell it, and pay the balance due on the purchase, and the rent. Plaintiff failing to sell, defendant took the property and sold it for just sufficient to pay the amount of plaintiff’s indebtedness. In an action by the latter for the fraud,—Meld, that the subsequent acts in affirmance of the contract were no defence, and that the proper measure of damages was the difference in value between the property and business as it was, and as it would have been if as represented. D. P. Ba/ma/rd for the appellant. J. T. Marean for the respondent. [MAJORITY — Gkovek, J.,] Gkovek, J., reads opinion for affirmance. All concur. Judgment affirmed, with costs.