In August, 1884, the plaintiff sold to the defendant a drove of cattle. The following memorandum of the contract was written and signed by the plaintiff, and delivered to the defendant:
“Cattle sold W. H. Jacobs, for $648.50, embracing 21 head of cattle, to be paid by transfer of a certain mortgage now at the First National Bank, the collection of which is to be guarantied by him.
“August 26,188f N. M. Littlejouh.”
There was a failure to deliver a few of the cattle, which reduced the consideration for those delivered to $542.52, the sum stated in the affidavit.
It was overwhelmingly proved that, pending the negotiations, the defendant, in order to induce the plaintiff to agree to sell the cattle to him and accept the mortgage in payment therefor, knowingly misrepresented to the plaintiff the character and quality of the mortgaged lands, and grossly overstated their value and productiveness, the amount of improvements thereon, the ability of the mortgagor to pay the mortgage, and his own pecuniary responsibility. He failed entirely to deny, qualify, explain, or excuse any of these fraudulent representations, but left them to stand in the record as verities. The plaintiff was ignorant of the quality, condition, productiveness, and value of the lands, and of the pecuniary resources and responsibility of the mortgagor and the defendant. He had a right to rely, and did rely, upon the representations of the defendant, believ*603ing them to be true. Had. he known or suspected that they were false, it is perfectly obvious he would not have sold and delivered his cattle to the defendant.
Neither the liability of the defendant for the price of the cattle, nor the amount claimed in the affidavit to be due therefor, can be controverted on the trial of the traverse. E. S. sec. 2745. "Whether the defendant is liable for the price of the cattle, or any part thereof, and how the agreement by plaintiff to take the mortgage in payment, and the fraudulent representations by the defendant concerning its value, will affect the question of such liability, can only be determined on the trial of the cause on the merits. The material question now is, Was the debt fraudulently contracted? We have seen that it was. It is scarcely necessary to add that this indebtedness is due upon express contract — that is to say, for cattle sold by the plaintiff to the defendant for a stipulated price.
For the foregoing reasons the finding that “ the defendant did not contract the debt specified in the plaintiff’s said affidavit ” is erroneous. The finding should have been that the defendant fraudulently contracted such debt, and the attachment should have been sustained.
By the Court.— The order is reversed, and the cause remanded for further proceedings in accordance with this opinion.