
    Zachariah L. Tompkins, Respondent, v. Edward F. Cole, Appellant, Impleaded with Another.
    Judgment and order reversed and new trial granted, with costs to appellant to abide event.
   Held, that the trial court should have passed upon the question of fraud or misrepresentation; that the defendant Cole did not waive his claim for damages by electing to retain what he had received under the contract. The findings of fact contained in the decision numbered seventh and eighth are disapproved. All concurred.  