Federoff

Action to recover balance of $950 alleged to be due upon a promissory note executed and delivered for the sum of $1,620, by the Birks Bros., to the defendant H. B. Whitten, and assigned by him to the plaintiff W. R. Federoff. The note was given on account of the purchase price of a 2%-ton U. S. truck sold upon contract. The defendants interpose the defense of fraud and misrepresentation. The action was tried before a jury, and at the conclusion of the defendants’ testimony upon the defense of fraud and misrepresentation, the court directed the jury to bring in a verdict in favor of the plaintiff and cross-defendant and against the appellant in the sum of $950, and also directed the jury to fix the amount of the attorneys’ fees. The jury brought in a verdict as directed and fixed the attorneys’ fees at the sum of $50. - From this judgment the defendants Birks have appealed. The appellants in their answer set up a number of specifications of fraud and misrepresentation, but at the trial attempted only to prove two of the items thereof, to wit: That the plaintiff’s assignor represented the truck to be in good running condition, and, also, that the truck would carry a tractor weighing…