delivered the opinion of the Court.
This suit was brought by the appellant, upon a promissory note drawn in his favor by the appellee, dated Aug. 19th, 1812, for four hundred dollars payable six months after date. Besides the count on the note, the declaration contains the usual money copnts, and a count for goods bargained and sold.
The defence relied on by the appellee is a want,1 or failure of consideration, and that the note was obtained by fraud, deceit and misrepresentation practiced upon him by the appellant.
. It appears that in 1811 the appellant, a farmer in Baltimore County, had a lease for five years of a house and premises at No. 62 Mulberry street, which was occupied by Stephen S. Gaule. The appellant also owned certain personal property consisting of two horses, two wagons and harness, with cans, measures, ice-box, and fixtures in the house necessary for carrying on the business of supplying milk to customers in the city. At first Gaule was agent of the appellant, and sold milk which the latter sent him, for wages. Afterwards an arrangement was made between them, by which Gaule agreed to pay for *33the milk supplied him by the appellant, which he sold, to customers in the city, using for that purpose the horses, wagons and other personal property of the appellant, for which Gaule agreed to pay to the appellant interest on the cost of the same.
This was the relation between Gaule and the appellant in August, 1872, when on the 19th day of that month a contract was made between the appellant and appellee, whereby the latter agreed to purchase the horses, wagons and other personal property used in the business; and also the residue of the tei-m of five years in the premises at ISTo. 62 Mulberry street, for the sum of $1400, of which $600 was paid in cash and two notes of $400 each were given for the residue, one payable in six and one in twelve months, the first of which is the cause of action in this case.
The personal property was in Gaule’s possession, but the appellant had a bill of sale of it. To carry out the contract with the appellee, “ the bill of sale held by the appellant was released to Gaule,” by which we understand tlie personal property was conveyed by the appellant to Gaule; and the latter executed a bill of sale to the appellee conveying to him tlie personal property. This instrument was dated Aug. 19th, 1872, and was regularly acknowledged and recorded.
On the same day, a sub-lease of the premises on Mulberry street, was made by the appellant to the appellee for the residue of the term of five years.
Thus far the facts are undisputed, but here arises a conflict in the testimony. According to the evidence of the appellant, the sale included also a transfer of a debt whicli Gaule owed him, amounting to $500 or upwards, and it was understood that the appellee, was to assume towards Gaule the same relation, which the appellant had; and get the benefit of the same preference in supplying milk, *34to be sold to the same customers, upon what appears to be known in the trade as “the milk route.”
The appellee testified that the contract of purchase embraced the debts due from customers to whom milk had been furnished, charged on the books, which the -appellant represented to be good, and as amounting to $800, and further represented that he would have them collected by the 16th of October, 1872; and also testified that the appellant represented that he was the owner of the “milk route” in the city, and that the same was estimated in the purchase, and formed a part of the consideration which the appellee agreed to pay. And-he further testified that these representations were false, that no debts were due to the appellant from the customers, and that the right to the milk route was not in the appellant, but was claimed by Graule and his family. On the other hand the appellant testified, that he did not represent that any money was due him from the customers, or charged on the books. That the appellee well knew the nature of the business, and of his relation with G-aule. That his dealings were not with the customers in the city directly ; but with Graule, who purchased the milk from him, and was alone responsible to him for the same ; and what he agreed. to sell was the debt due him by Graule; which according to Graule’s testimony was $790, and further that he made no misrepresentations with respect to the “milk route.” That his business connection with Graule being well known to the appellee, the understanding was that the latter was to take his place in the business with the benefit of the good will attached to the premises No. 62 Mulberry street, and the benefit of the preference in supplying milk, under the arrangement with Gaule. We give the testimony of these witnesses, substantially without repeating their words. To decide upon this conflicting testimony, 'was properly within the province of the jury; and we have no remark to make upon it.
*35Another conflict in the testimony of the parties, is found in their statements as to the time when the contract was to take effect, and the possession he delivered. The appellee testified that it was to take effect on the 16th day of October, 1872 ; while the appellant stated in his evidence that it was to go into effect immediately. This question of fact 'was material for the jury to determine, in considering the effect of the conduct of the parties after the contract was made. It clearly appears by the proof, that after that time, the appellee went on to supply milk to Gtaule, who continued in possession of the house, and the personal property; and that the appellant from that time ceased all connection with the business. About the 13th or 14th of October, some disagreement arose between G-aule and the appellee, when the latter for the first time demanded possession of the house and personal property. In December following, when G-aule and his family were about to move out, the appellee took possession of the personal property, and sold it according to his statement for $280, but refused to take possession of the house. He states in his testimony that on the 16th October, when according to his understanding, he was to have possession under the contract, he learned from G-aule that there was no money charged on the books, to be collected and paid to him. He then went to see the appellant, met him at the cattle-show grounds, told him there was no money charged on the books due to him, at the time of the sale, and offered to give up all the property, and let him keep the $600 paid him, if he would give up the two notes; which he refused to do.
Other evidence was given on both sides, but it is not necessary to refer to it here, in order to understand the questions presented by the several rulings of the Circuit Court, embraced in the appellant’s exceptions. These will now be noticed in the order in which they appear in the record.
*36The'first exception was taken to the admission of John Young’s testimony to the effect, that “he had been in possession of a building on the premises 62 Mulberry street, the entrance to which was on Ivy Alley, since May, 1873, to the time of trial, and that he rented the house from Mrs. S. S. 'Gaule, who lived on Cathedral street.”
In óur judgment this evidence was inadmissible, for several reasons. It does not appear that the house occupied by the witness, on the alley in the rear, was included in the lease held by the appellant, and sub-let by him to the appellee; but if it was a part of the same premises, it does not appear that Mrs. Gaule or her husband were agents of the appellant in .renting the house,.or were acting under his authority, or with his knowledge. It was therefore inadmissible, and was calculated to mislead the jury, by making, the impression on their minds that “the appellant was, through her, interfering with the appellee’s possession.”
2nd. The second exception was taken to the rejection of the fourth and eighth prayers of the appellant, and the granting of the appellee’s second and third prayers.
AYe think the fourth prayer of the. appellant ought to have been granted. There is no evidence whatever in the ■record, to prove that Gaule was agent for the appellant, after the time when he had been employed by the latter, upon wages, to sell milk, The appellant was entitled to an instruction to the jury to that effects The effort on the part of the ajrpellee, was to bind the appellant by the acts of Gaule, subsequent to the making of the contract, and as there was no proof of agency, it was error to refuse the fourth prayer. As to the appellant’s eighth prayer, we think its refusal furnishes no ground for reversal. The prayer is defective in assuming the fact of the sale, instead of submitting it to be found by the jury. Such a defect may always be relied on in this Court, as a valid objection to a prayer that has been refused by the Court below ; *37though under our rules it cannot be urged with respect to a prayer or instruction actually granted, (Rule 4,) 29 Md., 2. But besides this, the proposition of law contained in the prayer, so far as the same is correct, was stated to the jury substantially, in the other prayers of the appellant, which were granted.
In our opinion there was error in granting the second and third prayers of the appellee; each of them instructed the jury that they must find for the defendant upon the hypothesis of facts therein stated. We take no note of the objections urged by the appellant, on the ground that these prayers siibmitted to the jury facts of which there was no evidence. Such an objection to a prayer actually granted, cannot be considered in this Court, under the rule before cited, unless it appear that it was distinctly made, and decided in the Court below. The substantial defect in both these prayers, is that they claim for the appellee entire exemption from liability upon the note, provided the jury find, with the other facts enumerated, that he was induced to make the contract by false and fraudulent representations of the appellant ; without submitting to the jury to find that he had, within a reasonable time after discovering the alleged fraud, rescinded the contract, or offered to do so. This was essential in order to entitle him to the instructions contained in these prayers.
If the appellee meant to rest his defence not upon a rescission of the contract; but upon the ground that he had been induced to make it, by false and fraudulent representations of the appellant, upon which he relied; then, if this were found in his favor by the jury, he would be entitled only to recover damages for the fraud by way of recoupment, the amount of which must be ascertained by the jury; and it was error to grant the prayers, which took that question from the jury, and instructed them that the plaintiff was not entitled to recover.
*38(Decided 30th June, 1874.)The legal rights of parties in case's of this hind have been recently decided by this Court in Groff vs. Hansel, 33 Md., 164 to 170, where the cases were fully reviewed.
Being of opinion for the reasons stated, that there was error in the ruling of the Circuit Court, stated in the appellant’s first bill of exceptions, and also in refusing the fourth prayer of the appellant and in granting the appellee’s second and third prayers, the judgment will be reversed and a new trial ordered.
Judgment reversed, and neiv trial ordered.