
    No. 28,638.
    The J. B. Colt Company, Appellee, v. W. G. Kuttler, Appellant.
    
    (278 Pac. 728.)
    Opinion filed July 6, 1929.
    
      W. M. Glenn, of Tribune, for the appellant; J. Graham Campbell, of Wichita, of counsel.
    
      Clement L. Wilson, of Tribune, J. H. Jenson, of Oakley, and Wilfred C. Boszel, of New York, N. Y., for the appellee.
   The opinion of the court was delivered by

Burch, J.:

The action was one to recover on a promissory note. The answer admitted execution of the note, but undertook to plead want of consideration, fraud and illegality. Judgment was rendered for plaintiff on the pleadings, and defendant appeals.

Plaintiff confesses error, and some brief observations for guidance of the trial court will suffice.

Want of consideration was sufficiently pleaded. Fraud was not pleaded in the portion of the answer denominated “answer,” although it was stated that the note was obtained by fraud and misrepresentation. The portion of the answer denominated “cross petition” did, however, plead fraud in due form and, taken as a whole, the answer should be construed as pleading fraud as a defense. While the plea of illegality was retrenched, it tolerably disclosed what the pleader was driving at, and was sufficient, as against a motion for judgment on the pleadings, to challenge validity of the note under section 5242 of the Compiled Laws of North Dakota, 1913.

The judgment of the district court is reversed, and the cause is remanded for further proceedings.  