#### W. C. TISE v. MRS. JENNIE PALMER HICKS et al.

(Filed 18 April, 1928.)

Appeal by plaintiff from Stack, J., at November Term, 1927, of Forsyte:.

Affirmed.

Tbis is an appeal from judgment overruling plaintiff’s assignments of error based on exceptions taken by him at tbe trial of the action in Forsyth County Court, and affirming tbe judgment of said court upon tbe verdict of a jury. Plaintiff excepted to tbe judgment and appealed to tbe Supreme Court.

Fred M. Parrish for plaintiff.

Benbow, Hall & Benbow and W. H. Beckerdite for defendants.

Pee Curiam.

An appeal by defendants in this action, from judgment of the Superior Court of Forsyth County, sustaining plaintiff’s assignments of error upon bis appeal from a judgment of nonsuit rendered at a trial in the Forsyth County Court, and remanding the action to said court for a new trial, was beard in this Court at Spring Term, 1926. The judgment of the Superior Court was affirmed, 191 N. C., 609. The action has been since tried in the county court.

The action is now in this Court, upon plaintiff’s appeal from judgment overruling his assignments of error, based upon exceptions taken by him at the trial in the county court, and affirming the judgment, upon the verdict of said court.

The issues of fraud raised by the amended answer of defendants were answered by the jury in accordance with the contentions of defendants. *873Plaintiffs assignments of error, based upon bis exceptions taken at the trial in the county court were properly overruled. There is, therefore, no error in the judgment of the Superior Court affirming the judgment of the county court. Upon the facts found by the jury, and upon defendant’s contentions with respect thereto, which were sustained by the jury, there was no error in bolding that defendants were not required to return the money paid to them by the plaintiff, in order to maintain their defense to plaintiff’s recovery in this action. It cannot be held that there was no evidence upon which the jury could answer the third issue in the affirmative; there was no error in refusing plaintiff’s prayer for instruction with respect to said issue. Tbe judgment is

Affirmed.