A motion for a rehearing was disposed of as follows :
By the Court,
Paine, J.A motion for a rehearing was made in this case, and it was argued that although the law be as stated in the opinion already filed, still if the agent of the plaintiffs accepted the property back, in consequence of the false and fraudulent representations of the defendants as to the manner in which it worked, such fraud would avoid the effect of the acceptance, and the plaintiffs might still insist on the contract.
We think this is so, and if there were any evidence upon which a jury might properly have found fraud in the defendants, we should feel bound to reverse the judgment, and order a new trial. But we can discover no such evidence. There was some conflict in the evidence, it is true, as to the actual capacity of the machine. But there was nothing tending to show, that the defendants did not try it according to the best of their ability, or that they did not believe the representations they made as to its mode of working. This being.so, we still think the doctrine of the opinion already filed, applicable to the case, and that there was no evidence which would have warranted a different verdict. The fact that it might be possible on another trial, to show the representations to have been fraudulently made, is no reason for changing the decision. It might be said of every verdict, that if a new trial were had, different facts might be proved, which would change tbe law applicable to the case. But that abstract possibility is not a sufficient reason for ordering a new trial, so long as there is nothing before the court tending to show that such different facts exist.
The motion is denied, with costs.