
    Linerode v. Rasmussen.
    
      Fraudulent representations in contract — Bale of land with representations of mineral deposit — Buit on purchase money notes — Defense of fraud — Measure of damages — Contract law.
    
    Where the defendant was sued on notes given for purchase money for a farm, and sought to recoup damages on the ground that the plaintiff had represented that “underlying said premises, was a three or three and a half foot vein of good, bituminous, minable coal,” whereas there was no coal whatever under said premises, the measure of damages is the difference between the value of the farm as it was represented to be and its actual value at the time of the purchase.
    (Decided December 18. 1900.)
    Error to the Circuit Court of Stark county.
    The plaintiff in error was plaintiff below, and filed his petition in the court of common pleas of Stark county against the defendant in error, to recover on five promissory notes, three of which being for $2,800 each, were due, together with interest thereon, and two of which notes, aggregating $2,200, principal, were not due. The plaintiff sought to foreclose a mortgage securing these notes, and the defendant in his answer sought to recoup in damages $4,300 for misrepresentations alleged to be made by the plaintiff, at the time the farm was transferred to him by the defendant. The misrepresentation charged was. that the plaintiff represented that underlying said premises was a three or a three and one-half foot vein of good, bituminous, minable coal. The reply was in substance a general denial. The verdict was for the defendant. Motion for a new trial was overruled and judgment rendered on the verdict; and on petition in error in the circuit court the judgment of the court, of common pleas was affirmed. To reverse this action of the circuit court the petition in error is filed here.
    
      Virgil P. Kline, and McCarty, Craine & McDowell, •for plaintiff in error.
    
      Charles O. Upham, for defendant in error.
   By the Court.

Assuming that the plaintiff made the representation as asserted by the defendant, and that it was not a mere puff or an expression of opinion, the true measure of damages would be the difference between the value of the farm as it was represented to be and what it was actually Avorth at the time of the purchase. The trial judge seemed to recognize this, but said to the jury that by consent counsel had adopted as the rule of damages the value of the coal per acre. No intimation of such consent appears in the record except in the charge to the jury ; but on the contrary, whenever the question was asked as to the value of the coal per acre, counsel for plaintiff objected, the objection was overruled and exception was taken. The question was incompetent not only as based on a wrong measure of damages; but, Avhen it was propounded as a hypothetical question to expert witnesses, it did not correspond to the conditions of the alleged representation, as testified to by the plaintiff, nor did it contain the necessary data from which the witness could form a complete opinion.

We have not considered, and do not decide, the question Avhether the representation Avas anything more than an expression of opinion,for the reason that there is some evidence of conduct and language by the plaintiff tending to sIioav the intent with Avhieb the representation was made, if made at all. Inasmuch as this evidence may be qualified on another trial we purposely do not express an opinion on that point.

Reversed.  