¶1 On rehearing.
¶2 In this case a rehearing was ordered and had. Further consideration of the case has wrought no change in the views of the members of the court. The former opinions will stand.
¶3 (dissenting in part). I concur in the principles stated in the syllabus; but not in the result reached in the foregoing opinion by the application of the principle stated in ¶ 5 of the syllabus. While the portions of the instructions set forth in the opinion are incorrect under the rule stated in ¶ 5, I do not believe that any prejudice resulted from the instructions as given. The evidence in the case related only to the value of the property at the time of the sale. There was no evidence, whatever, relating to the value of the property at the time of the trial or at any time subsequent to the time of the sale. When the instructions are construed as a whole it seems to me that the jury, in applying the same to the evidence in the case, could not have been misled but must have' understood that in determining the amount of damages they must be guided by what the evidence showed the property to be worth at the time of the sale, and not by any opinion which they might have outside of the evidence as to the value of the property at the time the instructions were given. In other words, it seems to me. that the jury must have understood that the measure of damages to be applied by them in arriving at a verdict in this case was the difference between what the property would have been worth if as represented, and what it actually was worth at the time of the sale!