
    Cliff R. Cook, doing business as the Colonial Perfume and Toilet Company, Appellee, v. M. L. Williams, Appellant
    
    No. 16,194.
    1. Election of Defenses — Pleading — Estoppel. One who pleaded certain alleged fraudulent acts as a defense was bound by his pleading and could not upon the trial avail himself of other facts not pleaded.
    2. Contracts — Fraud—Submission to the Jury. Where there was no proof that any of the.alleged fraudulent representations by the plaintiff was untrue, there was nothing to submit to the jury on that issue.
    S. .- Construction. Where the execution of a written contract was admitted it was not proper to submit to the jury the question what the contract was.
    
      Appeal from Cowley district court; Carroll L. Swarts, judge.
    Opinion filed December 11, 1909.
    Affirmed.
    
      C. T. Atkinson, and C. R. Pollard, for the appellant.
    
      Faulconer & Cunningham, for the appellee.
   Per Curiam:

The court properly held the defendant bound by his bill of particulars as to what the fraudulent acts of the plaintiff were, and since there was no complaint that a catalogue was not sent to him, or that the plaintiff had failed to furnish a bond as required, these were not facts of which he could take advantage on the trial. Fraud is never presumed, and the court having rightly decided that there was no proof that any of the representations made by the plaintiff was false there was nothing to submit to the jury. The contract was in writing; its execution was admitted, and it was not proper to submit to the jury the question what the contract was. If a judgment had been returned in favor of the defendant it would have been the duty of the court to set it aside.

The judgment is affirmed.  