MacLoane

Defendants appeal from a judgment against them in the sum of $5,500 plus attorneys’ fees.

By its complaint in this action the plaintiff alleged that on June 3, 1956, the defendants delivered to the plaintiff their promissory note in the sum of $5,500 by the terms of which they promised to pay, 29 days after date, to the order of “Hollypark Realty, Trust Account,’’ the sum of $5,500 without interest and, in case of suit, to pay an additional reasonable sum as attorneys’ fees. It further alleged that by the terms of the note defendants promised to pay plaintiff the sum of $5,500 on or before July 2, 1956, without interest and that no part of said sum of $5,500 had been paid.

By their answer, the defendants denied all the allegations of the complaint and in addition thereto alleged certain special defenses including want of consideration. The details of these special defenses pleaded are not material in view of the conclusion which we have reached.

The plaintiff seeks to enforce the note pleaded as the trustee of an express trust and not as the beneficial owner and holder of the note. At the trial the plaintiff did not content itself as it might have with proof of the execution of…