Page:United States Reports, Volume 209.djvu/268

 242 OCTOBER TERM, 1907. Opinion of the Court. :]09 U. . the said property without placing any requirements on the purchasers or holders of the said lands to put in any certain sze of plants or number of coke ovens, ad that the plaintiff, relying upon the said representations of the defendant, expended time and effo in the attempt to find a purchaser, and did find a !urchaser able, ready and willing to purchase ten thoand acres of the said lands at the said price provided the defendant's said representatJone were correct, and that the said sale failed because of the inaccuracy of the defendant's represeitatiens that the said' Railway Company had so consented or agreed to construct a branch railroad into the said coal lauds, then the plaintiff is entitled to recover the said stipulated sum of $2.50.per acre on the ten thousand acres, Or $25,000 in all." This was given, and the defendant took a general exception. It is objected to thi s ruling that the jury was not required to find and could not have found that any particular land was agreed upon. But it at least would have been warranted in finding that the .plaintiff had done in ths rezpect all that his bargain equ[red him to do. The agreement failed for a wholly different reason, and no difficulty in complcting the sale arose on that ground. We are of opinion that the objection is en- titled to no consideration, especially upon a mere general ex- ception and upon a point not taken in the trial court. McDer- mott v. Severe, 202 U.S. 600, 611.. A second objection taken is that the condition of the consent to purchase was misstated; that the condition was not that the defendant's representation was correct, but hat the railroad should agree to build. But this is evidently a loint that should have been called.to the attention of the court. We cannot doubt that, the plaintiff's counsel and the judge meant to state what the letters showed to have happened,.ahd would have stated it more exactly if te inaccuracy had bee pointed out. Probably in speaking of the defendant's representations proving correct, statement of past facts were.less rferred to than thesc sounding in warranted prophecy. But the instruction was justified as it stood. If the defendant had had such an agreement as at one time he

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