#### Myrtle Johnson, Defendant in Error, v. T. Willard Ready, Plaintiff in Error.

Gen. No. 22,535.

(Not to be reported in full.)

Error to the Circuit Court of Cook county; the Hon. John Gibbons, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1916.

Affirmed.

Opinion filed October 31, 1917.

Statement of the Case.

Action by Myrtle Johnson, plaintiff, against T. Willard Beady, defendant, to recover damages for false and fraudulent representations. To reverse a judgment by default for plaintiff for $534.18, defendant prosecutes this writ of error.

S. T. Slawitsky, for plaintiff in error.

Spencer Ward, for defendant in error.

*

See Illinois Notes Digest, Yols. XI to XT, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Goodwin

delivered the opinion of the court.

*126Abstract of the Decision.

1. Appeal and ebrob, § 788 * —when bill of exceptions is necessary. Where no bill of exceptions appears in the record filed in the Appellate Court and the judgment is within the ad damnum of the declaration, that court cannot consider a suggestion that the judgment is excessive.

2. Damages—when declaration is sufficient as basis for judgment by default and assessment of. A cause of action sufficient to sustain a judgment based upon a default and an assessment of damages is stated by a declaration which sets out clearly false and fraudulent representations made by defendant, known by him to be false and made for the purpose of inducing plaintiff to rely thereon, and in circumstances entitling the latter to rely thereon, and that the latter did rely thereon and was injured thereby and that the property which was delivered to plaintiff was without value.

3. Damages, §. 233*—when verdict of guilty as part of findings of jury assessing damages treated as surplusage. In an action for damages, though a verdict of guilty is improper where no plea is filed on behalf of defendant, such portion of the jury’s findings may be disregarded as surplusage where the findings include a proper and sufficient assessment of damages.