¶1By the Court:
¶2This action was not brought to rescind the contract and recover back the stock given in exchange, but it is an action to recover damages for a false and fraudulent representation. We have carefully examined the evidence, and deem it *606sufficient to support the finding of the referee that the pamphlet or circular, which contained the said alleged representation, was not printed and published for the purpose of deceiving and defrauding the public or the plaintiff. The determination of this point, upon the question of fact involved therein, in favor of the defendant, is fatal to plaintiff’s claim in any aspect of the case.
¶3We have also examined the exceptions taken by the plaintiff at the trial, and are of the opinion that they are untenable.
¶4The judgment should be affirmed, with costs.