
    Messmore and Another v. Vanpelt and Another.
    Where, in a suit upon a promissory note, there is no denial, but only affirmative answers, it is not necessary that the plaintiff should give the note in evidence.
    
      Saturday, December 1.
    APPEAL from the Shelby Common Pleas.
   Hantsa, J.

Suit on note. Answer: 1. Want of consideration. 2. That the note was given for a threshing machine, which plaintiffs falsely and fraudulently represented and warranted to be a good machine, and that it would thresh two hundred and fifty bushels of wheat per day, &c. That defendants were ignorant, &c., and relied upon said representations. 3. That at the time of said purchase, defendants had engaged a large amount of threshing, and so stated to plaintiffs, and that they required a machine that would thresh two hundred bushels per day, which plaintiffs represented this would do, &c.; that it would not perform the work required, and defendants were thereby prevented from doing said threshing, and were, in consequence, damaged more than the amount of said note.

L. Barbour and J. B. Howland, for appellants.

M. M. Bay and A. Mayor, for appellees.

Eeply in denial of the first and second paragraphs of the answer; demurrer to the third, which does not appear from the record to have been disposed of. Trial by a jury; verdict for plaintiffs.

Two questions are raised. 1. It is said the evidence was insufficient, because the note was not given in evidence. The objection is not well taken. The answers are affirmative. The first paragraph admits the execution of the note, &c. 2. It is contended that it was erroneous to go to trial with an issue of law undisposed of.. If a demurrer had been overruled to the answer, and issue taken upon it, such ruling would have been error; for. the paragraph attempts to set up, as a counter-claim, damages that were too remote to be so set up.

Per Ouriam.

The judgment is affirmed, with 5 per cent, damages and costs.  