This was an action in deceit, brought to recover damages alleged to have been suffered by the plaintiff through fraud practiced upon him in his purchase from the defendant of a lease, good will, fixtures and stock of a restaurant. A nonsuit was entered on the ground that the plaintiff was precluded from recovering by a judgment entered against him, under the terms of the contract- of sale, for the balance of-the purchase-money due. If such a judgment was entered against him it was not offered in evidence, and the complaint of learned counsel. for appellant is that it was not, therefore, before the court as a basis for any action upon it. If it was conclusive evidence against- the plaintiff, the record of it ought to have appeared as a material item of evidence in the case. A mere ■ reference to it in the statement of claim, or the oral testimony of a witness, was not proper legal evidence of it, or of what action, if any, had been taken upon it by either of the parties to it.
Judgment reversed with a procedendo.