On Motion for Rehearing.
Erom appellant’s motion for rehearing appellant seems to interpret our opinion as *495saying that appellant’s books covering the period from,! August 1, 1931, to December 31, 1931, were introduced in evidence on the trial. The fact is the books themselves were not introduced in evidence and we did not mean to say they were, and we think the words we used in the opinion would not admit such construction. The record shows that Mr. A. E. Pye, the accountant who made the statements used on the trial, was testifying as a witness. As a part of a very extended examination the following questions were asked him and answers given:
“Q. Mr. Pye, examine these books here that Mr. Scott has produced in court and state whether or not these are the books you made these statements from, look at them and see. A. They are.
“Q. These books that they have produced here are the books that you used to make up these various statements? A. Yes.
“Q. And you state to the jury that these statements you have submitted, each and every item listed there is on those books there? A. Yes.
“Q. Correctly taken off? A. Yes, sir.”
Now, the witness Pye, in his answers, did not use the verbiage of the question. By an unqualified affirmative or negative answer to a question the witness necessarily adopts the verbiage of the question. From the above questions and answers of the witness we understand, as stated in the opinion, that the books, from which the statements were made, were actually in the presence of the witness while testifying; that he identified the books as those from which he made the statements; that in making the statement the items listed were on the books and correctly taken off. ■We- think we were justified in saying that the items in the statement were but transcribed items from the books, as shown by the books from which the witness apparently was testifying and comparing with the statement.
We perhaps were not clear in our discussion as to the admissibility of the financial statement of the 9th of October, over objection that it covered a-period of time not covered by the representations pleaded.
We think the statement was admissible.
The record shows that the agreed consideration of $13,000 was to be paid, conditioned that McWilliams could raise the money on his trip to New York. That shortly after the agreement was made in August, 1931, McWil-liams went to New York, and on October 5th wrote to Scott from; New York asking for a financial statement of the property in question and the earnings for the past year. In reply Scott, on October 9, 1931, sent to Mc-Williams in New York the statement in question.
It is essential to the maintenance of the action in deceit that McWilliams had the right to rely upon the representations upon, which he acted in consummating the contract. As suggested by Scott, ■ the stock sale contract had been made in August, 1931, yet the money had not been paid, nor the stock deliv-*) ered; the contract was at that time.execu-tory. We regard the representation made ins the statement of October 9th as a continuing one, upon which McWilliams might rely'if he so regarded it. The statement then became a mattei| of evidence, a matter: for ‘the consideration of the jury and the weight to be given it.
The motion is overruled.