
    38458.
    ROBERTS v. FORMISANO et al.
    
   Jordan, Judge.

This was a suit on a promissory note, dated December 1, 1958, in the amount of $7,500 brought by Charles and Olive Formisano against Edyth P. Roberts as the maker of the note, it being alleged by amendment that the sum of $3,700, plus attorneys’ fees of $550, was due and collectible thereon. The defendant filed a plea of failure of consideration and an answer and cross-bill in which she admitted the execution of the note and the nonpayment of the amount sued on but denied liability thereunder on the ground that the note had been fraudulently procured by alleged misrepresentations by the plaintiffs as to the value of the business for the purchase of which the note had been executed. The trial court sustained the plaintiffs’ general demurrers to the plea of failure of consideration and to the answer and cross-bill with leave to the defendant to' amend within 30 days.

The defendant filed an amended answer and cross-bill within the time allowed in which she alleged that she had signed the note sued on in reliance on the fraudulent misrepresentations of the plaintiffs, with whom she occupied a confidential and fiduciary relationship, as to the previous earning capacity of the business and the number of salesmen employed therein. The trial court overruled the general demurrers to the answer and • cross-bill as amended. The case proceeded to trial before a jury and at the conclusion of the evidence, the trial court directed a verdict in favor of the plaintiffs in the amount sued on. The defendant excepted to that judgment. Held:

Decided January 5, 1961.

Ward, Brooks •& Williams, Osgood 0. Williams, for plaintiff in error.

Sam G. Dettelbach, Joel J. Fryer, contra.

The defendant having admitted the execution of the promissory note and the nonpayment of the amount sued upon, and there being no evidence adduced to sustain the allegations of the defendant’s amended answer and cross-bill as to the fraudulent misrepresentations of the plaintiffs, or evidence of any matter which would constitute a defense to the note, the trial court did not err in directing a verdict for the plaintiffs in the amount sued on.

Judgment affirmed.

Townsend, P. J., Carlisle and Frankum, JJ., concur.  