Day, J.
I. No motion or order was made for trial upon written evidence. The cause, therefore, as we have repeatedly held, is not triable ele novo in this court.
1. fraudulent representation: contract:evidence. II. Pending the trial the defendant moved the court to exclude all the evidence introduced by plaintiff tending to show the terms and conditions of the contract, and the quantity of land to be sold, with all that relates to damages, for the reason that it is incompetent, [133]*133immaterial, and inadmissible under the pleadings. The court overruled this motion, and defendant excepted. It is now urged that this motion should have been sustained, because there is no allegation in the petition that at the time of consummating the agreement, and executing the deed, there was any omission by accident, mistake or fraud, or that it was understood by the parties that any other or different contract was intended than that mentioned in the deed. The petition, however, alleges that plaintiff bought, by metes and bounds, fifty feet of the lot; that defendant executed to her a deed for forty feet, and by false and fraudulent representations induced plaintiff to believe that the deed conveyed to her the whole premises bought. The allegations of the petition are, we think, sufficiently broad to admit the evidence introduced. The court did not err in refusing to strike it out.
2. practice: finding of referee. III. It is further urged that the finding of the referee is against the preponderance of the evidence. The ° . † 1 . cause is not, as we have seen, triable de novo. The finding of the referee stands as a verdict of a jury, and cannot be disturbed unless clearly unsupported by the testimony. It is not so wanting in support from the evidence as to justify us, under the well settled rules for the government of our action in such cases, in disturbing -it.
The judgment is
Affirmed.
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