This court finds that it is shown by the record that the court of common pleas held that the deed which purported to convey the interest of the *587plaintiff, Charles Schmidt, in the said real estate did not convey any right, title or interest of the plaintiff in said premises to the defendant; and the record further shows, that the court of appeals correctly held that while said deed did not in its legal effect operate to transfer the title held by the plaintiff to the said premises, it did operate as a contract by him to convey the same to the defendant.

This court further finds that by consenting to the consideration of the cause by two judges of the court of appeals, the plaintiff in error, Schopmeier, waived the assignment of error in his petition in error, .that the judgment of the court of common pleas was against the weight of the evidence and of the equivalent assignment that it was not sustained by sufficient evidence. But this court finds that the testimony of the plaintiff, if wholly undisputed, fails to sustain the allegation in his reply, that the said deed was obtained from him by fraud and misrepresentation. The circumstances connected with the execution of the said purported deed, as related by the plaintiff, are not sufficient in law to sustain the allegation referred to.

It is, therefore, ordered and adjudged by this court that the judgment and order of the court of appeals reversing the judgment of the court of common pleas be, and the same is hereby, affirmed, and the cause is hereby ordered to be remanded to the court of common pleas with directions to permit an issue to be made up concerning said con*588tract and its enforcement, and for further proceedings according to law.

Judgment affirmed.