ON REHEARING.
Beck, Ch. J.Upon a petition for rehearing we have given this case a careful reconsideration. We confess that the minds of some of us were, upon the original argument, as well as upon the rehearing, strongly inclined to sustain the decree of the court below. But this disposition, we must frankly say, resulted from the conclusion, readily reached, that plaintiff made a bad bargain and is really a loser in the transaction. Upon a closer study of the case, we fail to discover that the foregoing opinion does not fairly and fully present the facts and the law applicable thereto. It is now our deliberate judgment that the testimony fails to disclose a case of fraud and false representations authorizing the court to set aside the contract of the parties. The evidence is fairly and sufficiently discussed in the foregoing opinion.
It is urged in the petition for rehearing that the opinion misstates the pleadings, when it says that the representation that the land lay as well as another farm is not averred in the petition. But if it should be admitted that the statement is erroneous, the opinion expressly holds that the allegation is not sustained by a preponderance of proof. The plaintiff* therefore, has had the benefit of the allegation.
*227Plaintiff now claims that this allegation was not denied by defendant, and, therefore, must be taken as admitted. This position is first urged in the petition for rehearing. We will not now consider it. It may be further remarked that plaintiff treated the allegation as denied, and introduced evidence to support it in the court below and in this court. Tie cannot now insist that the allegation is admitted.
Other parts of the petition for rehearing are devoted to a discussion of the evidence. It is quite unnecessary to say any more on this subject than has been said in the first opinion. We are content to rest the case upon what is there found. We adhere to the conclusions heretofore reached, and still think the decree of the court below ought to be reversed. .