Opinion by

This appeal depends upon the correctness of the rule given by the learned judge of the court below to the jury upon the measure of damages to which the defendant was entitled. The action was upon a note given by the defendant for a balance of purchase money due to the plaintiff for machinery bought of him. The defense was that the purchase of the machinery was induced by false representations made by the plaintiff as to the character, effectiveness and state of repair of the machinery at the time of sale. Evidence was given upon the trial tending to show that false representations were made to the defendant, and that he had expended some money and lost some time in the effort to put the machinery in good working condition, with however but indifferent success. Upon this state of the evidence he asked the court to tell the jury that he was entitled *154not only to defeat a recovery upon the note, but also to recover back all tbe purchase money previously paid, all the expenses incurred, and compensation for all time lost, without having rescinded the contract or returned the machinery. This, the-learned judge declined to do, but instructed the jury that one-who had been imposed upon or misled by false and fraudulent representations must elect which of two courses of conduct he would pursue. He had the right to rescind the contract, return the articles purchased, and demand the return to himself of the purchase money; or he could retain the property purchased and defend against the purchase money, or recover in an action for the deceit the difference between the value of the goods as represented or warranted, and their actual value at the time of the sale. This was a correct statement of the law applicable to the facts alleged by the defendant and we see ho reason for complaint on his part. The assignment of error which embodies this instruction is overruled and the judgment is affirmed.