Plaintiff sues on a promissory note for $900. Defendant denies any consideration for note and, for a separate defence, alleges that the note was part payment for the sale of a certain business and outstanding accounts belonging to a corporation of which plaintiff was the principal owner and manager; and that the vendor (said corporation) guaranteed, as part of the terms of sale, the payment of all the accounts, which were known and designated as outstanding accounts, and agreed to compensate and reimburse the defendant for any losses which he might sustain in the collection of said outstanding accounts; and defendant alleged a loss upon such outstanding accounts of over $2,200, which he counterclaimed against plaintiff’s demands. The plaintiff, he claims, obtained the note on the strength of these representations. The plaintiff denied these allegations. The defendant practically claims that plaintiff obtained the note by false representations as to the moneys due the concern upon the accounts sold to the defendant; and he sought to counterclaim, at least to the extent of the loss upon such accounts.
The court dismissed the counterclaim and held that there was no fraudulent representation by plaintiff, and no defense to plaintiff’s claim. To this ruling, and to the refusal of the court to submit any question to the jury, the defendant duly excepted. By direction of the court, the jury found a verdict for plaintiff in the sum of $921. Defendant appeals.
It seems to us that there was some evidence offered tending to sustain the defendant’s contention, and an issue was thereby raised that should have been submitted to the jury. He introduced evidence to show certain representations as to *655the accounts being good and collectible, true and correct, and no claims of any kind existing; and that he subsequently discovered that a large number of claims existed against the concern and that there were accounts uncollectible.
The judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide the event.
Present: Scott, Gilbersleeve and MacLean, JJ.