Luther Bosserman brought an action against Amelia Leppert in the Hamilton Common Pleas. The case was tried upon an agreed statement of facts and judgment for $500 was rendered in favor of Bosserman.

Leppert it seems, conveyed to Bosserman a two story house for $5,500. After Bosserman had moved into the property he discovered that one foot of the roof of the house and porch was not in the lot described in the deed but extended over onto the adjoining lot.

Error was prosecuted fro mthe judgment of the lower court and Leppert claims that Bosserman could not recover unless it were shown that the representations in the deed were fraudulent. Bosserman claims that when shown that the vendor of real estate has not transferred what was contracted to be transferred he is liable without proof of fraud or misrepresentations. The Court of Appeals held:

1. An action for damages caused by misrepresentation cannot ordinarily be maintained without proof of actual fraud or such gross negligence as amounts to fraud.

2. When, however, the person claims the benefit of a contract into which he has induced another to enter by means of misrepresentations, however honestly made, the same principles cannot be applied.

3. It is then only necessary to prove that the representation was material and substantial affecting the value or character of the subject matter of the-contract, that it was false that the other party had a right to rely upon it; and that he was induced by it to make the contract, in order to have the contract rescinded or to enforce it in. a suit by recoupment. Mulvey v. King, 39 OS. 491.

Judgment affirmed.