
    No. 4130
    Second Circuit
    BLANCHARD v. HARBESON ET AL.
    (December 9, 1931. Opinion and Decree.)
    Theus, Grisham, Davis & Leigh, of Monroe, attorneys for plaintiff, appellee.
    Joseph S. Guerriero, of Monroe, attorney for defendants, appellants.
   DREW, J.

Plaintiff sued to recover a solidary judgment against defendants. The basis of the suit is five promissory notes made by defendants payable to themselves and by them endorsed. The notes represent the amount due for the rent of a building leased by plaintiff to defendants.

Defendants filed exceptions of vagueness. and no cause of action, which exceptions were by agreement referred to the“ merits. Defendants, in answer admit making the notes and allege that the rent contract was abrogated and cancelled by oral agreement between plaintiff and defendants, and that said notes were extinguished and supposed to have been destroyed.

Plaintiff filed a motion to have judgment on the petition and answer, which motion was overruled by the lower court arid the case tried on the merits, resulting in judgment for plaintiff, as prayed for. Prom this judgment, defendants have appealed. Plaintiff answered the appeal praying that the motion for a judgment on the petition and answer be sustained. Under our finding' in the case, we prefer to pass on the merits.

There has been no appearance in this court by appellants and we therefore consider the appeal as abandoned. However, we have carefully read the record and find no error in the judgment of the lower court. It is. purely a question of fact and it is clear that the plaintiff proved its case with a preponderance of evidence.

It is therefore ordered, adjudged, and decreed that the judgment of the lower court be affirmed, with costs.  