The following opinion was filed December 11, 1923:

At the close of the trial and from plaintiff’s own evidence, many of the specifications asserted in the complaint of alleged false representations could no longer be considered as a basis for recovery, the plaintiff having been informed as to the real facts before making his investment, and this is especially so as to the representation made that the company had been making a profit.

Plaintiff maintains, however., that there remained at least four several representations as to material facts and that such were false and relied upon, and that any of such, if the jury accepted the plaintiff’s version of the transaction, would be sufficient to support the general verdict in his favor. Two of these relate to the trade acceptances of $2,500 and $1,200 respectively. The situation as to these two, however, was substantially known to plaintiff before he made his investment; he had ample opportunity to obtain *570and means of obtaining further information concerning each of them if he had so desired, and from the record we are compelled to say that as matter of law neither one of such furnishes a substantial basis for the verdict.

Another circumstance relied upon was that one Ullman, the father of the vice-president of the company, claimed that there was due him the sum of about $600 for commission and that no account thereof appeared on the books. It appears, however, that as to this the plaintiff knew, before making his investment, that such a claim had been made for $50 or $75 although not on the books. But more controlling than that information which he had is the fact that there is no testimony that there was any such amount due Ullman. All that this item amounts to is that plaintiff was told in the afternoon of the day he invested his money that Ullman made a larger claim for commission than he had before asserted. This is certainly insufficient basis for the verdict.

Lastly is the contention that in the afternoon prior to or the morning of the day when plaintiff deposited his $5,000 to the company’s credit, Berger, the company’s vice-president, told plaintiff that there was then on deposit to the company’s credit $1,800 to $2,000; it being then'discussed that this amount together with the $5,000 plaintiff proposed to invest, with the anticipated proceeds from the business during the following month, would furnish sufficient capital to tide the company over its then recognized difficulties and place it on a going basis.

A consideration of the testimony in this case discloses that the plaintiff from the very start did not rely upon obtaining information from the president of the company, with whom alone he transacted the business, but acted and relied upon his own investigation and judgment, being assisted from time to time by his brother, an attorney at law, his father, an experienced business man, and by the reports made to him by the accountant of his own selection and the employees of such accountant from their independent ex-*571animation of the company’s books. He had full and ample opportunity to ascertain as to the fact of any balance in the bank by mere inquiry there. He knew at this time that there had not been a checking over between the books of the company and those of the bank. From all the facts as to plaintiff’s actions in this regard as they appear from his own testimony and that of his witnesses, we are forced to the conclusion that it must be said as a matter of law that there was no such reliance by plaintiff upon .such statement by the company’s president, if any such statement was made, as would be necessary to support recovery for damages in a tort action or as a basis for rescinding the contract. This conclusion makes other questions presented immaterial.

It follows from what has been said that the verdict and the judgment thereupon must be set aside and the complaint dismissed.

By the Court. — Judgment reversed, and action remanded with directions to dismiss the complaint.

A motion for a rehearing was denied, with $25 costs, on February 12, 1924.