
    JOHN THOMAS, Plaintiff and Appellant, v. CORNELIUS B. PAYNE, Defendant and Respondent.
    
      [Decided December 3, 1870.]
    Upon appeal from a judgment entered upon the report of a referee, the court will not disturb the finding of fact by the referee where there is sufficient evidence to sustain such finding.
    Before Barbour, C.J., Monell and Freedman, JJ.
    Appeal from a judgment entered upon the report of a referee, dismissing plaintiff’s complaint.
    The action was brought for the recovery of $4,500 damages alleged to have been sustained by the plaintiff in consequence of a false representation made to him by defendant in the sale or exchange of some stock.
    The representation complained of was contained in a printed pamphlet or circular published by the authority and with the consent of the defendant, but which the referee found was not printed and published for the purpose of deceiving and defrauding the public or the plaintiff.
    
      Mr. A. J. Requier for appellant.
    
      Mr. James Taylor for respondent.
   By the Court:

Freedman, J.

This action was not brought to rescind the contract and recover back the stock given in exchange, but it is an action to recover damages for a false and fraudulent representation. We have carefully examined the evidence, and deem it sufficient to support the finding of the referee that the pamphlet or circular, which contained the said alleged representation, was not printed and published for the purpose of deceiving and defrauding the public or the plaintiff. The determination of this point, upon the question of fact involved therein, in favor of the defendant, is fatal to plaintiff’s claim in any aspect of the case.

We have also examined the exceptions taken by the plaintiff at the trial, and are of the opinion that they are untenable.

The judgment should be affirmed, with costs.  