Majority
p. 935Paul E. Auerbach, Appellant, v. The Pease Oil Company, Respondent.
p. 936
■—Judgment affirmed, with costs. All concurred, except McLennan, P. J., who dissented upon the ground that upon the trial the plaintiff waived the fraud alleged, and the case then proceeded as one upon contract, and that there.was an implied warranty that the engine sold was a new one.