I am of the opinion that this action can be maintained upon the pleadings presenting the issues as they are presented herein. The allegation of the complaint as to the Buick car is to the effect that the defendant was to put it in first-class condition and that it was the latest four-cylinder model Buick, and that plaintiff relied upon those representations in making the contract that was made with the defendant. The defendant answered with a general denial of those allegations and of all the material allegations of the complaint, and counterclaimed with an allegation of misrepresentation on the part of the plaintiff as to the condition of the Stutz car, with consequent damage to himself. The case was tried and submitted to the jury upon that theory, and I see no error that militates against the result, except the refusal to charge as requested by defendant’s counsel, viz.: “ I request your Honor to charge the jury that in case they find the Stutz car in question was fairly worth only $2,000, at the time the trade was made, then if they find that the Willys-Knight was only worth $1,000, and the Buick only $350 even then the plaintiff cannot recover in this case because that would make a total of $1,000 plus $350, plus $700 which would be $2,050.” This request was formulated from evidence given by both sides upon the trial, and such a solution would have found support in that evidence.
The refusal was error which calls for a reversal of the judgment.
Judgment and order reversed and new trial granted, with costs to the appellant to abide the event.