This case arises on the sale of a bakery by the defendant to the plaintiff. The action is to recover for false representations alleged to have been made by the seller. Amongst the representations alleged to have been made were that the income of the bakery was from $575 to $600 per week and that the bakery was the only bakery business in the city of Bridgeton. We think that the evidence well sustains the proposition that these representations were actually made; that they were not true; that the vendor knew they were not true and made them with the purpose that they be relied upon, and that the vendee did in fact rely upon them.

Appellant raises six points.

Point one is that the court erred in submitting the case to the jury in that the plaintiff failed to prove affirmatively the existence of scienter. We find no error therein.

The second point is that the plaintiff failed to prove affirm, •atively the existence of all the elements necessary to make out a case. We think there was enough to justify sending the •case to the jury.

*604Point three is that the court’s charge was so framed that it enabled the plaintiff to recover otherwise than by a preponderance of proof. Counsel did not call this or any other defect in the charge to the attention of the court.

Points four, five and six, in our opinion, have no substance..

The rule is discharged, with costs.