This action was brought by the plaintiffs to recover the sum of $200, and the plaintiffs allege, among other things, that false and fraudulent representations were made by the defendant at the time of the purchase of the goods in question, which led to their sale. There is no allegation in the complaint of any damage arising out of these representations. The action was referred to a referee appointed by the city court, for trial, and upon such trial no proof was offered on behalf of the defendant. The plaintiffs’ testimony showed that the defendant owned more than $20,000 above his *234debts and liabilities at the time that the representations were made, and that the representations made by him at the time of the purchase were substantially true. The most that could be said is that the representations were false in one respect only; but this can give no cause of action, for it does not appear that the plaintiff acted on that false representation, or that any damage arose by reason thereof. It also appears from the evidence that the defendant was amply responsible to pay the debt incurred by him, notwithstanding the incumbrance upon his property, and there was no proof offered as to his actual insolvency. There was therefore no question of fact in the case to have been submitted to a jury, had the case been tried before it, and therefore the referee was right in dismissing the complaint. The judgment should be affirmed, with costs.