Herman

The plaintiff herein instituted an action to annul a contract made Avith defendant, to recover the money paid him, and to compel him to reconvey certain real estate which plaintiff had conveyed to him under the contract.

The ground of recovery alleged is the fraudulent representations made by defendant with regard to the subject-matter of the contract, on account of which fraud, the plaintiff alleges that prior to the-commencement of the action, he rescinded the contract, and had offered to restore to the defendant Avhat he received thereunder.

*163 At the trial the defendant moved for a nonsuit, on the following grounds:

The Court granted the motion.

A new trial was applied for and granted, and from the order granting a new trial this appeal is prosecuted.

It appears, from the statement on appeal, that the plaintiff, to sustain the issues on his part, made prima facie proof of the contracts, of fraudulent misrepresentations, and of payments as alleged, and then follows this admission: “ And defendant admits that plaintiff made sufficient proof to sustain his case, except as to tender and as to time of attempting to rescind.”

The statement then sets forth the evidence of…