Action for Goods Sold—Insufficiency of Evidence to Support Answer—Review upon Appeal.—In an action for goods sold and delivered, where the answer denied the sale, and pleaded a separate and distinct answer, upon appeal from a judgment for the defendant, where the record shows that all the evidence was admissible under the denial of the answer, under specifications of insufficiency of the evidence to sustain the answer, an assignment of insufficiency thereof to sustain the separate and distinct answer, will not be reviewed or passed upon.

Id.—Support of Findings Against Sale—Commission.—Held, that it cannot be said that there was not sufficient testimony to justify the findings of the court that the transaction between the parties did not amount to a sale, or pass the title, but that the delivery was upon commission.

Id..—Ambiguous Written Order — Evidence — Representation by Plaintiff’s Agent.—Where a written order presented by plaintiff’s agent to the defendant for signature, seemed upon its face not to import an absolute sale, but was so artfully worded that it might be a trap for the unwary, the evidence of the defendant was admissible to show that when the signature was asked, the plaintiff’s agent represented to defendant that the delivery under the order was upon commission.

Id.—Evidence Not Varying or Contradicting Writing—Circumstances Showing Estoppel.—Such evidence of defendant as to the circumstances under which the order was signed, was not objectionable as varying or contradicting the writing, but tends to show that it was not the instrument of defendant, and that defendant’s signature was procured under such circumstances by the plaintiff as estops the plaintiff from using it or relying upon it as against the defendant.

Id.—Absence of Contract—Minds of Parties Not Meeting.—The evidence for defendant was sufficient to show that the minds of the parties did not meet, and that there was no contract between them upon the terms of the written order.

Id.—Fraud Vitiating Contract.—It also seems clear that a fraud was practiced upon defendant by the representative of the plaintiff, and that defendant’s signature to the order was procured by misrepresentation and fraud sufficient to vitiate the instrument. The defendant had the right to rely on the representation of plaintiff’s agent that the written instrument presented for signature was but an order to send the goods for sale on commission, and plaintiff in an action between the original parties is not in position to say that having practiced this fraud, defendant must still be bound because he did not mistrust plaintiff and signed without an independent examination.

Id.—Inapplicable Bule.—The rule that the injured party must show that he has availed himself of the means of information existing at the time of the transaction, before he will be heard to say that he was deceived by the misrepresentation of the other party, is not to be carried to the extent of holding that under the circumstances of this ease defendant should be bound by a written agreement at variance with the terms of the actual agreement and which he was induced to sign by misrepresentation upon the part of the plaintiff.

Id.—Sufficient Evidence of Fraud.—Held, that it cannot be said that the showing of fraud in this case was not sufficiently clear and convincing to sustain the effect given thereto by the trial court.