¶1We are clearly of opinion that the court erred in withdrawing this case from the consideration of the jury. It is not very important whether we call the transaction between the parties a sale or an exchange, although we think the latter the more correct term. At the time the exchange was made, the parties did not stand upon an equal footing. The plaintiff had no knowledge whatever of the Kansas property except what he derived from the defendant, who claimed to have personal knowledge during the negotiations. The representations made could in no way be considered as mere matter of opinion as to the value of the land, or as to its location. The representations were distinct and important, and if found to have been made and that they were untrue in fact, and that plaintiff in making the exchange relied upon the representations made, then clearly he was entitled to recover. The case should have been submitted to the jury under proper instructions.
¶2The judgment must be reversed with costs and a new trial ordered.