[1] Undue Influence—Action for Damages — Rescission — Pleading.—In an action for damages based solely upon the defendant’s exercise of undue influence over the plaintiff in the procurement from plaintiff of a contract for the purchase of the latter’s stock in a particular corporation and certain notes, the complaint fails to state a cause of action where it contains no averment of a rescission of the contract.

[2] Fraud—Election of Remedies—Damages—Pleading.—Where the complaint shows that such action is not based wholly, or chiefly, upon the defendant’s undue influence over the plaintiff in the procurement of said contract, but that it is one essentially sounding in fraud, consisting in the fraudulent design and false representation of the defendant by which plaintiff was induced to part with his notes and stock without adequate consideration, and that the plaintiff has elected to affirm the contract and sue for damages, the complaint is sufficient without an averment of a rescission of the contract.

[3] lb. — Infirmities of Defendant — Evidence of Mental Condition.—In such an action, where the gravamen of the plaintiff’s complaint is that by reason of his physical and mental infirmities he was the more easily misled by the defendant’s representations as to matters of fact which, had he been in his normal state of mind and body, he would have known or could have learned to be untrue, evidence as to his enfeebled mental condition on the date of the transaction in question is properly admitted.

[4] Id.—Wealth and Experience of Defendant—Evidence—Want of Prejudice.—In such an action, the admission of evidence as to the defendant’s wealth and business experience is not prejudicial to the defendant where the verdict of the jury awards to the plaintiff not the large amount of damages which he prayed for, but only a sum which represents the actual value of the plaintiff’s stock at the time of the transaction in question as fixed by the testimony of the defendant himself.