Opinion by

This judgment was obtained for want of sufficient affidavit of defense.

The instrument declared on shows on its face that the plaintiff in error was to have five days allowed to her to consummate the bargain recited therein. The affidavit of defense, inter alia, declares that the obligation was’ given in consideration of the purchase of the good will of a lodging house and restaurant, together with the fixtures and household furniture therein; that the vendor stated the business was prosperous and paying; that she had, as regular customers, about 400 people daily who took their meals there; that- she sold not less than 100 quarts of milk daily, and that she was not in debt.

Deponent swears she bargained on the strength of these representations, believing them to be true, and agreed to bind the bargain by paying $20 down, which she paid, and was to have five days to investigate the character and extent of the business, and if her investigations did not prove satisfactory, she should be at liberty to decline to consummate the bargain; and under this understanding and agreement she signed the writing.

Deponent further avers that on investigation she ascertained the representations made by the vendor were false as to the extent and prosperous condition of her business; that in fact only *573about 150 persons took their meals, and she sold only twenty quarts of milk daily; that her business was running behind, and she was heavily indebted to her baker, butcher, poultry man, and milkman. She further swears that the goods she was to obtain do not exceed $400 in value, and the other $1,400 was wholly based on the value of the business and the good will of the establishment; she also declares that she has since ascertained that the person who acted as her friend and agent, in assisting her in the transaction of purchase, in fact acted' collusively with the vendor to effect the sale, and that the latter fraudulently (with knowledge of his agency) agreed to give him all above $1,500 for assisting in making the sale. On learning the facts the deponent declined to consummate the purchase, and did not take possession, and the business, goods, and chattels were not delivered to her, but remained in possession of the vendor.

At this stage of the case, and for the purpose we are now considering these alleged facts, they must be assumed to be true. If they shall be substantially proved on the trial, it will present a case which should be submitted to a jury. It follows the judgment was improperly ordered.

Judgment reversed and a procedendo awarded.