The opinion of this court was delivered by

This action was case for deceit, to recover damages for selling the plaintiff the patent and the exclusive right of making and vending the defendant’s clover-hulling machine in Warren county, New Jersey, when the defendant knew that no such patent existed.

The gist of this action is fraudulent misrepresentation. To recover, it must be shown that deceit was used to throw the plaintiff'off his guard and prevent his being watchful: 2 Leigh’s N. P., 1377; 2 Eng. Com. Law R. 303. That the defendant knew the representations which he made were false, and the plaintiff had acted upon these representations: 2 Leigh, 1068; 3 Wendell, 385; 7 Vermont Rep. 67. It was in evidence that the defendant had *280applied for a patent, and paid $30 at Washington. He had not yet received it. The article between the parties recited, that he had obtained the patent, but he offered to prove before the article of agreement was signed, that Herr told Swazey he had not the patent, and this, as well as the 2d, 3d, 4th, and 5th bills of exceptions, which are the same in principle, forms the first error assigned. The objection was that the contract was in writing. The evidence was properly received. It was material evidence to show that the defendant had not acted fraudulently, that he had communicated the truth to the plaintiff, and that the parties acted upon the expectation that a patent would be issued from the department and duly received. The evidence, if believed by the jury, stripped the case of all fraudulent misrepresentations and falsehood, and put an end to the plaintiff’s action. It was properly received.

We see no error in either of the other assignments on the record.

The opinion on the first error assigned puts an end to the plaintiff’s case.

The judgment is affirmed.