Dickey

Plaintiff sued upon a promissory note in the sum of $3,500. The cause was tried before a jury and resulted in a verdict in favor of the defendants. Prom the judgment following the verdict the plaintiff has appealed upon a typewritten record.

The litigation arises out of a written contract, executed July 31, 19-22, wherein the plaintiff sold to the defendants a restaurant located in the city of Berkeley for the agreed purchase price of $5,000. Pursuant to the contract the defendants paid the plaintiff $500- in cash and executed and delivered to the plaintiff three promissory notes, one for $500 payable August 10, 1922, one for $500 payable August 30, 1922, and one for $3,500 payable January 31, 1923. Respondents took possession of the restaurant on July 31, 1922, and paid the first promissory note within a few days after it became due. Prior to the due date of the second promissory note the defendants in this action commenced a suit in the superior court to rescind the contract of sale upon the grounds of fraud and misrepresentation. In the complaint filed in that action the contract of sale was pleaded in full and several charges of fraud were alleged among which was the failure…