
    MINNIE L. BARTO RESPONDENT, v. JOHN BENKER, APPELLANT.
    Submitted July 8, 1918
    Decided October 11, 1918.
    On appeal from the Supreme Court, in which the following per curiam was filed :
    “This is an action to recover money paid on account of a rescinded contract for non-performance by appellant.
    “The facts found by the District Court judge are, that the plaintiff agreed to purchase the business of the defendant, which included a license for the sale of liquors, the consideration being $1,000, upon which $550 was paid in cash and the balance in promissory notes; that a bill of sale was made by the defendant to the plaintiff and also a power of attorney permitting the plaintiff to carry on the business in defendant’s name and to run and manage the saloon as fully as he could; that the plaintiff entered into possession; that prior to that time the defendant had executed a power of attorney to the Union Brewing Company, which refused to consent to the sale, or to transfer the license, whereupon the plaintiff rescinded the agreement and demanded the return of the cash payment, and this being refused, she brought her suit for the amount paid, waiving the excess over $500 and recovered a judgment, from which the defendant appeals, the only ground being a refusal to nonsuit.
    “According to the state of the ease settled by the trial court, no testimony appearing in the record, the plaintiff had a cause of action and a motion for a nonsuit was properly refused.
    “The judgment should be affirmed.”
    Eor the respondent, Day, Day, Smith & Slingerland.
    
    Por the appellant. Albert C. Pedrick.
    
   Per Curiam.

The judgment under review will be affirmed, for the reasons set forth in the opinion of the Supreme Court.

For affirmance• — The Chancellor, Chief Justice, Swayze, Trenchard, Minturn, Kalisch, Black, White, Heppenheimer, Williams, Taylor, Gardner, JJ. 12.

For reversal — None.  