
    WARNER-QUINLAN COMPANY, PLAINTIFF, v. SAMUEL S. WAITE ET AL., DEFENDANTS.
    Submitted May term, 1929
    Decided January 13, 1930.
    Before Gummeke, Chief Justice, and Justices Kalisch and Campbell.
    For the rule, Lester C. Leonard.
    
    
      Contra, William Sartshorne.
    
   Peb Cukiam.

This suit was to recover the amount of a book account for gasoline and oil furnished by the plaintiff to the defendant Samuel S. Waite, the payment of which account was guaranteed by his wife, the other defendant.

The defendants answered and the defendant Samuel S. Waite counter-claimed for damages because of having been illegally and forcibly ejected from the possession of two gasoline stations owned by the plaintiff.

Upon a trial of the issues the jury found in favor of the defendant on his counter-claim in a sum greater than the amount of the book account and he has a verdict for the difference amounting to $259.32, which we are asked to set aside for several reasons:

1. That the verdict in favor of Amy L. White is contrary to the weight of the evidence.

2. The court erred in permitting the terms of the written guarantee to be modified by parol evidence.

3. The court erred in refusing to strike out the defense of fraud.

4. The court erred in failing to define fraud and in submitting to the jury the question of whether or not the alleged oral promise had been breached.

5. The court erred in refusing to define legal fraud.

6. The verdict on the counter-claim is against the weight of evidence.

7. The verdict is excessive.

Our examination of the proofs and a consideration of the grounds brings us to the conclusion that no prejudicial error was committed by the trial court, that the finding of the jury was not against the weight of the evidence and that the verdict is not excessive.

The rule will therefore be discharged.  