Dickey

The litigation between the above parties, of which this action is a part, arose out of an agreement relating to the sale of a restaurant in Berkeley on or about July 24, 1922. The plaintiff executed to the defendant A. Kuhn (who will be hereinafter referred to as the defendant) the following instrument:

The defendant accepted the offer contained therein and paid on account the said sum of $100.

On or about July 31, 1922, their agreement was modified as to the terms of sale, pursuant to which defendant, being credited with the sum of $100, paid the sum of $400 in cash, and he and Lilian Kuhn, his wife, who is joined as a defendant in the present action, executed three promissory notes for the balance of the purchase price, one for $500, payable August 10, 1922, the second for the same amount, payable August 20, 1922, and the third for $3,500, payable six months after July 31, 1922. Defendant thereupon took possession of the restaurant and paid the first note when it became due. Before the maturity of the second note defendant brought an action to cancel the remaining notes upon the grounds of fraud and failure of consideration. Plaintiff denied the allegations of the complaint,…