2. Sales, § 114*—what does not constitute performance of contract for sate of a new automobile. Where defendant agreed to sell plaintiff a new automobile, held that he could not avoid his obligation by furnishing a car worn by showing it to prospective purchasers or moving it from place to place for providing equipment “and similar purposes,” as such use alone might so wear a car as to materially impair its operation.3. Sales, § 357*—when instruction on right of recovery in action to recover money paid on purchase of new automobilé is erroneous. In an action to recover money paid on the purchase of a new automobile based upon a claim that the car furnished was, from age and wear, from whatever cause, not new, held that an instruction that even if the uses wore the automobile to the breaking point the plaintiff could not recover was erroneous, as if the jury should believe that the use and wear had been shown to be more than reasonably should be in a new car of the kind and price, plaintiff would be entitled to recover.4. Pleading, § 1*—what time governs as to determination of rights of parties. Where no supplemental pleadings are filed, the rights of the parties must be determined according to the facts existing at the time the action was commenced.
