The main point urged by counsel on his motion for new trial was that the defendant should have tendered the stock back to Strong. The stock however, was worthless. (The counsel here cited from the testimony in support of this position.)
JUDGES: Myrick, J. Sharpstein, J., and Thornton, J., concurred.
OPINION
MYRICK, Judge
By the Court (in bank, on petition for rehearing):
This case was heard in Department 2 of this Court, and opinion filed August 18th, 1880. Application is made that the case be heard by the Court in bank. In addition to the facts stated in the opinion of the Department, the transcript shows that the defendant, in his answer, alleged that the payee of the note in suit induced defendant to execute the note by fraudulent and false representations as to the value of the mine and its stock, and that the representations were made for the purpose of cheating and defrauding defendant; that he represented the mine and its stock to be of great value, and that $ 10,000 worth of ore was on the dump; whereas, in truth and in fact, the stock and mine were of no value. There was evidence given by the parties relating to this issue; the evidence was conflicting; the Court properly instructed the jury regarding it, and the verdict is conclusive. Hearing in bank denied.