dissenting. I cannot agree with the majority opinion, nor with the result therein announced. In particular I believe it was prejudicial error in the trial court to give the instruction treated in ¶ 17 of the syllabus of the majority opinion. Plaintiff had the burden of showing, first, that the misrepresentations were made to him by defendant; second, that he relied thereon. Notwithstanding this fact, *478the jury was, in effect, told that if the defendant had been proved guilty of material misrepresentations, the burden shifted to him to show that, plaintiff did not rely thereon. This is the last instruction given, and was intended to, and did, modify the general instruction that the burden, of proof was in all things upon the plaintiff. Thus the court, in effect, told the jury that the defendant must disprove one of the things that it is conceded plaintiff should have proved. This clearly misplaces the burden of proof and was very prejudicial to the defendant. For this, reason alone I think a new trial should be granted.