Martin

This is an action by the payee of three promissory notes to recover $364.25 and interest alleged to be due from the maker of the notes, which notes represent a portion of the installments of the purchase price of a soda fountain sold by plaintiff to defendant under a conditional sales contract for the total price of $2,217. Certain down payments were made and the balance under the contract is payable by a number of promissory notes becoming due during the life of the contract, among which are the notes in suit. The defendant, finding that the machine did not function as plaintiff had asserted it would, failed to pay the first notes coming due, and plaintiff brought this action upon such notes, the defendant setting up the following defenses: (1) the fraud of plaintiff arising from the misrepresentation of its salesmen which induced defendant to enter into the contract; (2) total failure of consideration; (3) a breach of the implied warranty of merchantability under section 1771 of the Civil Code. The trial court found for the defendant on all three defenses and rendered judgment accordingly, and plaintiff has appealed from such judgment, urging that the evidence does not support…