
    Edward M. Redmond, Resp’t, v. Joseph C. Tone, App’lt.
    
      (Supreme Court, General Term, Fifth Department
    
    
      Filed June 19, 1890.)
    
    1. Pleading — Affirmative of issue.
    An answer in an action on a promissory note averred that the note was, given for supposed services which plaintiff falsely represented he had rendered to defendant; that there was a total failure of consideration, and denied each and every other allegation of the complaint except as admitted. Held, that the making and delivering of the note were thereby put in issue; that defendant did not have the affirmative of the issue, and was not entitled to open and close.
    2. Trial — Submission to jury.
    The work for which the note in question was given was done under a. written contract which fixed the compensation at a certain sum per week for not more than five months. The note represented the amount of the entire compensation on that basis. Plaintiff testified that he was actually employed in the work during the entire time, and this testimony was not disputed. Held, that there was no question of fact for the jury.
    3. Fraud — Cannot be predicated on representations as to value of-
    work.
    No charge of fraud can be predicated upon representations of the value of the work; that is matter of opinion and not the subject of fraudulent representation.
    Appeal by the defendant from a judgment of the Monroe county court, entered on the verdict of a jury directed by the court, and from an order denying the defendant’s motion for a new trial on the minutes in an action first tried in the municipal, court of Rochester.
    
      J. Van Voorhis, for app’lt; F. C. Webster, for resp’t
   Dwight, P. J.

The motion for a new trial was based upon two exceptions: 1st. To the denial to the defendant of the affirmative of the issues, and the consequent right to open and close the case; and 2d, to the denial of the defendant’s request to go to the jury on the question of fraud and failure of consideration. We think neither exception was well taken. The action was on a promissory note alleged to have been made and delivered to the plaintiff by the defendant The answer averred “ that the note in suit was given to the plaintiff for supposed services which the plaintiff rendered the defendant in arranging a book for publication. That at the time the note was given the plaintiff falsely represented to the defendant that he had rendered twenty-two weeks’ services, and that the services were of the value of over $550, at the rate of twenty-five dollars per week. The defendant had already paid him upwards of $250 at that time; and relying upon the truth of his representations as to the amount and value of his services, he was induced to give him the note in suit for $290.” The answer then proceeds to aver in detail the falsity of the alleged representations, the knowledge of such falsity on the part of the plaintiff, and his .intent thereby to defraud the defendant. It also avers a total failure of consideration for the note by reason of the same facts above mentioned, and ends by denying “ each and every allegation of the complaint, except as in this answer admitted.”

This denial put in issue the fact of the making and delivery of the note. The answer contained no admission of that fact except as a part of the defense of fraud and failure of consideration, and the plaintiff was not entitled to avail himself of the admission without admitting the defense of which it formed a part

Moreover, even if the exception had been well taken, it became unavailing when the court held that the evidence presented no question of fact for the jury and directed a verdict for the plaintiff. Fuller v. Union Electric Co., 22 Wk. Dig., 313.

Upon the evidence there was clearly no question of fact for the jury. The work was done under a written contract which fixed, the compensation of the plaintiff at the sum of twenty-five dollars a week for not more than five months from the 29th day of August, which was the same time (twenty-two weeks) for which, according to the answer, the plaintiff’s compensation was computed. Upon the question whether the plaintiff was actually employed in the work during that time the evidence is undisputed ; the plaintiff so testified, and no one assumed to deny it.

Do charge of fraud can be predicated upon representations of the value of the work; that was at the most a matter of opinion and not the subject of fraudulent representation. The defense of total failure of consideration was negatived by the undisputed evidence above referred to.

We find no error in the disposition of the case by the learned county judge.

The judgment and order appealed from must be affirmed.

Macohber and Corlett, JJ., concur.

Judgment and order appealed from affirmed, with costs.  