Upon the trial the judge assumed as established by proof a rescission of the contract between the parties, and directed a verdict for the amount which had been paid thereon by the defendant in error to the plaintiff in error.

Upon the evidence the assumption was unjustified. The testimony of plaintiff in error, which seems to have been relied upon, indicates a rescission upon a qualification that the defendant in error should lose the money paid by her.

The direction for a verdict was therefore erroneous, and the exception thereto must be sustained.

The judgment must be reversed and a venire de novo be allowed.

*406For affirmance—None.

For reversal—The Chancellor, Chief Justice, Depue, Garrison, Gummere, Lippincott, Ludlow, Magie, Van Sygkel, Bogert, Brown, Sims, Smith, Talman. 14.