Opinion by

The action of the Superior Court in reversing the judgment of the court of common pleas of Lancaster county, in this case, is made the subject of formal complaint in the first and second assignments of error. In the third assignment, it is alleged that the Superior Court erred in the statement which appears in its opinion, “ that the defense is upon the ground that Shaw was induced to enter into this contract on the faith of positive *580representations made at the time as to the amount of the net earnings made by the electric company, whicli representations were upon investigation discovered to be false.” We are at a loss to understand the suggestion of counsel as to this statement being erroneous. It certainly does set forth as a matter of fact, the ground upon which the defense was based in the trial court. The entire dispute was as to whether there had been misrepresentation; and this was submitted to the jury as a question of fact. In his appeal to the Superior Court, the defendant, Mr. Shaw, alleged error in the manner in which the case was submitted to the jury, and his allegation in this respect was sustained by the Superior Court.

It appears from the evidence that a prospectus which formed the basis for the contract in suit, set forth that, “ The total net income at the present time will amount to not less than $6,000 per year; ” and it was upon the strength of that statement that the defendant alleges he made the contract for the purchase of the option in question. Upon the trial, an expert witness for the defendant testified that an examination of the books of the company showed that the • annual net income of the plant amounted only to about $3,800 per year, or to the sum of $5,400 for the period of about seventeen months. In his charge to the jury the learned trial judge inadvertently said that this expert witness had testified that the earning capacity was about $5,400 for the term of one year. As the substantial dispute in this case was with reference to the earning capacity, this erroneous statement of the evidence would seem to have been upon the pivotal fact in the case, and we cannot say but that it may have misled the jury. The mistake was too serious to be passed over.

The Superior Court was also clearly right in holding that there was no evidence from which the jury could properly infer that the defendant had, prior to the making of the contract, any opportunity to ascertain for himself the amount of the net revenue received by the company, and that, as a consequence, it was error for the trial judge to submit to the jury the question whether the defendant knew, or ought to have known, the earning power of the plant at the time the contract was made.

Complaint is also made of the Superior Court in the fifth as*581signment for holding that “ when the defendant discovered the facts .which would have warranted a rescission of the contract, it was not possible to place the parties in the position which they had occupied at the time the contract was made.” But this was clearly correct; for, as is pointed out in the opinion, the Bximsey option, which was the subject of the contract, had ceased to exist, and the defendant had obtained a new or extended option, for the very purpose of gaining time to investigate the amount of the income of the company.-

We see no reason whatever for differing with the conclusions reached by the Superior Court; they are fully sustained, we think, by the reasoning in the opinion, and by the principles of the authorities therein cited and applied.

The assignments of error are overruled and the judgment of the Superior Court is affirmed.