Pee Cueiam.
This suit was brought to recover the sum of $92 for the value of an automobile battery. The state of demand consists of two counts, in which the defendant is charged with “fraudulently, falsely and maliciously in answer to the plaintiff, &c., that he would take care of the matter of returning the battery.” The second count, like the first, charges that he, the defendant, “would see that the cost of the battery and hire thereof was taken care of.”
The case was tried by the court without a jury, resulting-in a judgment for the plaintiff for $92. The defendant appealed and filed six specifications of the determinations with respect to which the defendant is dissatisfied in point of law. We need be concerned only with the fifth, viz., there is no evidence upon which the judgment of the court can be sustained. As we read the testimony sent up with the appeal, the allegations made in the state of demand are not supported by the proofs, viz., fraud and malice. The plaintiff’s testimony is, that the defendant said to him at the time he gave the battery to the defendant, “I will take care of it.” It is difficult for us to see how that testimony supports the judgment or is evidence of any fraud. The judgment of the District Court of Somerset county is therefore reversed, with costs.