It is clear that the question of the insufficiency of the evidence to support the findings of’ the jury cannot be raised upon this appeal. Since § 8 of chapter 131 of the Laws of 1913 provides that: “With all orders granting or refusing a new trial, the judge shall file a written memorandum concisely stating the different grounds on which his ruling is based, and unless insufficiency or unsatisfactory nature of the evidence is expressly stalled in such memorandum, as a' reason for granting the new trial, it shall be presumed on appeal that it was not on that ground
No such memorandum was filed in the case at bar, and we must assume, therefore, that the new trial was granted either because he deemed the findings to be inconsistent, or that the special verdict established that the plaintiffs suffered no damage by reason of the alleged fraud, or found no such fraud or the amount of any injury.
It is clear to us that the complaint states an action for actual fraud and deceit, and that the case was tried upon this theory and this theory alone.
*313Tbe gist of tbe aetion is actual fraud, and sucb tbe special verdict does not find. It does not even find a mutual mistake. It finds that tbe parties entered into an agreement for tbe sale and delivery by tbe defendant of a 30 by 60 cap cylinder traction gasolene engine; that tbe defendant on tbe 20th day of October’, 1913, delivered to tbe plaintiff a 30 by 60 cap cylinder traction gasolene engine; that tbe 30 by 60 cap cylinder traction gasolene engine so sold and agreed to be delivered by defendant to tbe plaintiffs was to be a new and unused tractor; that tbe gasolene tractor so delivered was not a new and unused tractor engine; that tbe defendant did not falsely and fraudulently, and without intent to deceive and defraud tbe plaintiffs, represent to tbe plaintiffs that it was selling them a new and unused engine; nor did it knowingly intend to cheat, wrong, and defraud tbe plaintiff by delivering to tbe plaintiff a second-hand, overhauled, repainted gasolene engine. It also found in answer to two interrogatories that tbe engine delivered to tbe plaintiff was worth $3,260, tbe purchase price paid therefor. So far there is no finding of actual fraud. There is, however, a finding that at tbe time of tbe purchase tbe plaintiffs believed that tbe engine delivered to them was a new and unused machine, and, although they examined the machine, they did not know at tbe time of tbe purchase or delivery that it was not a new, unused tractor; and, as we have construed tbe answer, it is admitted that tbe tractor was not new, and that tbe defendant was aware of tbe fact at tbe time. Though, therefore, tbe complaint charges actual fraud, we find that tbe same is negatived by tbe findings, and though there is a finding of a mistake on tbe part of tbe purchaser of tbe machine (which tbe proof says be examined before it was delivered by tbe defendant, but that be believed to be a new and unused machine), there is no finding of a mistake on tbe part of tbe seller. We have, therefore, a case where a manufacturer agrees to sell an unused machine, but without fraud or intent to deceive, delivers a used one, and we fail to see why any sucb findings are inconsistent, as it is clear that sucb a delivery might clearly be made on tbe assumption that tbe second-hand machine was as good as a new one, or that, though a new machine bad first been spoken of, tbe purchaser bad examined tbe sample old one and was satisfied therewith. At the most we have a case where a person has contracted to buy a new machine and receives an old one. There is a mistake of fact on the part of the *314purchaser but not on tbe part of the seller. Even if there were a mutual mistake of fact it is clear that such cause of action was not ■outlined by the complaint and cannot be relied upon. Connell v. El Paso Gold Min. & Mill. Co. 33 Colo. 30, 78 Pac. 677; Camp v. Carithers, 6 Ga. App. 608, 65 S. E. 583.
The facts present at the most a breach of a contract and in which the remedy of rescission has not been relied upon. Even, if they disclose a constructive fraud and come within the definition of § 5850 ■of the Compiled Laws of 1913, and if, as found by verdict, the defendants agreed to deliver to the plaintiff a new machine, and it was their ■duty to furnish the same, and the defendants were therefore guilty of a breach of duty for which they would be responsible, still constructive fraud cannot be proved under an allegation of actual fraud, nor can one recover upon a concealment where he has alleged an actual fraud. Haynes v. McKee, 19 Misc. 511, 43 N. Y. Supp. 1126; Markham v. Emerson, 69 Mo. App. 292; Biard v. Tyler Bldg. & L. Asso. — Tex. Civ. App. —, 147 S. W. 1168; American Surety Co. v. Pacific-Surety Co. 81 Conn. 252, 19 L.R.A.(N.S.) 83, 70 Atl. 584. We are satisfied, therefore, that the trial court correctly entered judgment for defendant in the first instance, and that there was no justification for .granting a new trial in the premises. We realize that where the findings are inconsistent a new trial may be granted, but there is nothing in the findings that is inconsistent. Actual fraud, as we have before said, is charged. Bindings 6, 7, and 9 absolutely disprove that charge. There is nothing in the other findings that is inconsistent with those mentioned, and findings 17 and 20 seem to support them.
Nor do we believe that the judgment should be set aside on the ground that all questions were not fully presented or material issues were not fully presented, as the findings cover both the questions of fraud, both at the time and the making of the contract and at the time of the delivery of the engine.
The order of the District Court is reversed and the judgment which was formerly entered is ordered to be reinstated.
Geace, J. I concur in the result.