Brandlin

This action is prosecuted for the recovery of the amount of three promissory notes given by the defendant to the Yirden Packing Company and by it assigned after maturity to the plaintiff. The defendant purchased five shares of the capital stock of the packing company for $500, paying $125 in cash and giving the three promissory notes upon which the suit is based for the remainder of the purchase price. The complaint is in the usual form and the answer admits the execution and delivery of the promissory notes, but alleges that the defendant was induced to make the purchase of the stock and give the notes by certain representations made by the agents of the packing company. Most of these alleged representations are mere promises and it is not alleged that such promises were made fraudulently or without intent to perform the same. More material misrepresentations of fact, which were not alleged, were proved at the trial and, at the close of the evidence, counsel for defendant moved the court for leave to amend the answer by alleging such misrepresentations. The court did not pass upon the motion but proceeded at once to instruct the jury. Proof of the misrepresentations which were…