evidence than if the door were closed and locked against such evidence. Consequently to defeat liability on a note because obtained by fraud the fraud must consist in something else than representations and promises of the kind referred to."

In the case of Fuller v. Law, 207 Pa. 101, 56 Atl. 333, the court said:

"The proposed evidence amounted to nothing more than an offer to prove an independent parol contract, that the note was to be paid in another method than that expressed on its face. It is straining both legal and moral definitions to call the mere failure to perform an oral promise to accept payment in a particular form, a fraud; dishonest it may be, but it is no more a legal fraud than the immediate collection of a past due debt on which the creditor has orally promised the debtor indulgence. As there was no fraud in the creation of the instrument, nor in not waiting until the dividends on the stock paid it, it comes under the rulings in Hill v. Gaw, 4 Pa. 493."

To the same effect are People's Bank v. Baker, Mo. App., 193 S. W. 632; First Nat. Bank v. Henry, -Mo. App., 202 S. W. 281; First State Bank v. Kelly, 30 N. D. 84, 152 N. W. 125, Ann. Cas. 1917D, 1044; Johnson v. Benham, 163 Minn. 31, 203 N. W. 444; Klemm v. Weil, 194 Iowa, 1073, 190 N. W. 388. A number of cases have been cited by counsel for respondent which are said to sustain their contention. We have examined them, but do not find them in point. In several of them the statements claimed as misrepresentations were construed to be equivalent to statements of present facts. In others, the promisor, with intent to defraud, made statements which he was in no position to carry out, or which he knew positively could not be and would not be carried out. Without attempting to analyze them in detail, the facts in all of them are totally dissimilar to the facts in the case at bar. In truth, we have not

been cited to a case, and we have found none, in which misrepresentations of the character claimed to have been made in the case at bar have been held to defeat an action on a note. A number of cases on this subject are collected in note 10 L.R.A. (N.S.) 640-653. As already indicated, neither Bushnell nor his agent were able, as respondent well knew, or should have known, to give the discount out of which, as is claimed, the note was to be paid. The success of the business in which respondent and his associates engaged was dependent upon contingencies which no man was able to foresee. The statements of Payne and of Bushnell were merely opinions, or expressions of hope, or expectation that the business of the corporation would be successful. And, as far as that is concerned, it is not at all unlikely that, had the financial depression not overtaken the country, and had the business been in the hands of competent men, and had the members of the corporation heartily co-operated, these hopes and expectations might have been fulfilled. But even respondent himself aided in the final insolvency of the corporation, for he failed to pay his indebtedness to it when it was in need, and withdrew his patronage at an unfortunate time. We tions constituting fraud. think, in short, that the representations that were made were not such as to constitute legal fraud.

-representa

The judgment of the district court rendered herein is accordingly reversed, and, in accordance with the provisions of § 5897, Wyo. Comp. Stat. 1920, the trial court is directed to enter judgment as of date September 19, 1923, in favor of appellant for the amount claimed in the petition, in accordance with the stipulation of parties entered into that such should be the judgment in favor of appellant, if any.

Potter, Ch. J., and Kimball, J.,

concur.

dence in the record to support a finding by the jury that the promise to correct the defects alleged to have existed in the heating plant and the hotwater system was not made in good faith and with intention to perform the same, but in order to induce defendant to agree to the alleged account.

Appeal, § 650 error without prejudice.

10. Denial of the plaintiffs' motion. to dismiss defendant's counterclaims, if error, was error without prejudice; the jury having found against the defendant upon such counterclaims.

ent:

The account was procured by fraud of plaintiffs, under promises made without intent to fulfil the same and with the defects never remedied, and should be set aside because fraudulently procured.

12 R. C. L. 257, ¶ 23; 27 C. J. 56, 189; Guild v. More, 32 N. D. 432, 155 N. W. 44.

Defendant had the right to believe plaintiffs' promises and rely absolutely on them; and, if it developed that the promises were made by them to deceive her into approving of the stated account, she could, because of the fraud, repudiate the whole purported settlement.

Fargo Gas & Coke Co. v. Fargo Gas & E. Co. 4 N. D. 219, 37 L.R.A. 593, 59 N. W. 1066; Liland v. Tweto, 19 N. D. 551, 125 N. W. 1032; Guild v. More, 32 N. D. 469, 155 N. W. 44.

Defendant's contract to approve an account was dependent, under its terms, upon the execution by plaintiffs of their contract to repair. One agreement was dependent upon the other. The contract was entire and indivisible.

6 R. C. L. 858, § 246.

An account stated may be overthrown for fraud like any other contract procured by fraud.

1 R. C. L. p. 217, § 16; Montgomery

v. Fritz, 7 N. D. 348, 75 N. W. 266; 1 C. J. 709, § 335.

This account was conditionally approved, and is not an account stated.

Cahill, S. Mfg. Co. v. Morrissey Plumbing Co. 3 Neb. (Unof.) 865, 93 N. W. 204; Hall v. New York Brick & Paving Co. 95 App. Div. 371, 88 N. Y. Supp. 582; State, Weigel, Prosecutor, v. Hartman Steel Co. 51 N. J. L. 446, 20 Atl. 67; Stevens v. Tuller, 4 Mich. 387; Shea v. Kerr, 1 Penn. (Del.) 198, 40 Atl. 241; Peirce v. Peirce, 199 Pa. 4, 48 Atl. 689; 1 C. J. 698, § 302; Work v. Beach, 53 Hun, 7, 6 N. Y. Supp. 27, 37 N. Y. S. R. 547, 13 N. Y. Supp. 678; Cartledge v. West, 2 Denio, 377; Baird v. Crank, 98 Cal. 293, 33 Pac. 63.

Plaintiff must recover upon stated account, or not at all.

1 R. C. L. p. 220, § 21; 1 C. J. 726, ¶ 397, note 52; Mayer Coal Co. v. Stallsmith, 89 Kan. 81, 129 Pac. 831; Cahill, S. Mfg. Co. v. Morrissey Plumbing Co. supra; Sterling Lumber Co. v. Stinson, 41 Neb. 368, 59 N. W. 888; Lowe v. Jensen, 22 N. D. 148, 132 N. W. 661.

Johnson, J., delivered the opinion of the court:

This is an appeal from a judgment of the district court of Ward county, entered upon two verdicts, one dismissing the plaintiffs' action and the other dismissing defendant's counterclaims. This case was here on a former appeal. See 42 N. D. 319, 172 N. W. 782.

The plaintiffs are partners, and were, at the time the facts constituting the cause of action arose, engaged in the business of plumbing and heating contractors in the city of Minot. The complaint alleges that between the 15th day of October, 1916, and the 5th day of October, 1917, the plaintiffs, at the special instance and request of the defendant, and pursuant to a contract therefor, performed labor and furnished materials in and about the construction and installation of a heating and plumbing system in a certain building belonging to the defendant, and that the reasonable value of the materials furnished and the services rendered was $8,607.85; that no part of this has been paid, except the sum of $6,613.95, and that on or about the 23d day of January, 1918, the plaintiffs and defendant agreed upon a stated account of the balance due in the sum of $2,068.73; that there is due and owing thereon to the plaintiffs the sum of $2,068.73, with interest from the 23d day of January, 1918. Judgment is demanded for this amount.

The defendant answered, admitting the rendition of an account on the 23d day of January, 1918, and that the defendant agreed to the correctness of the same and promised to pay it, and did, in fact, pay thereon the sum of $260. The defendant then alleges that at the time the parties agreed upon the balance as aforesaid, and as a part of the same transaction, the plaintiffs agreed to remedy defects alleged to exist in the heating and plumbing installed by the plaintiffs, and to make the same satisfactory to the defendant; that the plaintiffs knew that such system was unsatisfactory, improper, and inefficient, and promised to remedy the same, so that the system would properly and adequately heat the building under all weather conditions and furnish a complete supply of hot water at all times to the apartments therein; that the plaintiffs admitted that the equipment was insuffi

De

cient and did not operate successfully, and that plaintiffs did "state and represent that, if the defendant would approve a settlement of their mutual accounts in the sum of $2,068.73, the plaintiffs would remedy any and all deficiencies aforesaid in said heating system, and in the plumbing system they had installed in the said apartment building." It is then alleged that the defendant agreed to the account stated in good faith, because of the statements, representations, and promises made by the plaintiffs, as alleged. fendant further alleges that she was ignorant of the real cause of the deficiency in the heating system and did not discover the cause until afterwards; that the plaintiffs failed, neglected, and refused to remedy the deficiencies, and to perform according to their promises and representations; that the representations made on and prior to January 23, 1918, by plaintiffs to defendant were fraudulently made, without intention to perform the same, but were made for the sole purpose of deceiving the defendant, and inducing her to settle an account and promise to pay the account thus stated.

As a second defense the defendant alleges: That the plaintiffs performed work and labor and furnished materials between August 15, 1916, and October 5, 1917, upon the building aforesaid, under a contract therefor; that on or about September 1, 1916, defendant had drawings and specifications prepared, specifying therein, upon the advice of her architect, a boiler for such building of the capacity of 6,500 square feet of radiation, as necessary to adequately heat such building, and a third story to be added later, and the installation of a necessary hot water system, together with such plumbing as was specified; that such heating system and plumbing were to be installed pursuant to plans and specifications, and that plaintiffs furnished bids for the work pursuant to an advertisement for such bids; that

thereafter, and prior to October 13, 1916, the plaintiffs, for the purpose of inducing defendant to modify such plans and specifications, falsely and fraudulently represented to defendant that her architect was inexperienced and ignorant, and that many details called for in the specifications were unnecessary, and that the boiler capacity was excessive and greater than necessary to heat the building; that it was not necessary to provide for a separate hot water heating plant, and that many other details were useless and unnecessary, and that a smaller boiler, to wit, of the capacity of 3,800 square feet of radiation would be ample; that plaintiffs falsely stated to defendant that, if she would overrule her architect in these particulars and alter the original plans and permit plaintiffs to install the smaller boiler, the smaller boiler would be adequate under all weather conditions to heat the building; that plaintiffs did represent that, because of long experience in the work, they knew the needs and requirements of such a building better than her architect, and persuaded defendant to rely on their judgment, and that the defendant, persuaded by the plaintiffs as aforesaid, modified the original plans accordingly, in reliance upon the statements and representations of the plaintiffs. It is then alleged that the plant installed was wholly inadequate and did not work, that the apartments were cold and that the defendant was forced to incur considerable expense, which is alleged in some detail in the answer, because of the insufficiency and inefficiency of the system installed by the plaintiffs. It is then alleged that, because of the defects and deficiencies alleged in the second defense, the plant is useless and worthless, and that the defendant has been damaged in the sum of $3,000.

As and for a third defense, the defendant realleges most of the allegations of the second defense, supra, and some other matters not

substantially different from those alleged in the second defense, claiming damages under this defense in the sum of $3,319. Defendant then sets up three counterclaims, based upon the allegations of the defenses heretofore summarized and the expenses incurred by the defendant in remedying the defects and in installing, wholly or in part, a new system in lieu of that installed by the plaintiffs. The third counterclaim was withdrawn by defendant at the conclusion of the trial. The plaintiffs replied, interposing a general denial to the counterclaims.

The testimony of the defendant tended to support the allegations of her answer that the plans and specifications were modified largely upon, and in conformity with, the suggestions of the plaintiffs. The jury returned two verdicts, one for a dismissal of plaintiff's action and the other for a dismissal of the two counterclaims. Before the case was submitted, the plaintiffs asked the court to direct a verdict, but the motion, having been resisted, was denied under the statute. After the verdicts were returned, plaintiffs moved for judgment non obstante, which motion was denied. A judgment of dismissal was entered upon the verdict, and the appeal is taken from the judgment.

The appellants specify numerous errors. Error is assigned because the court gave certain instructions to the jury and upon the refusal of the court to dismiss defendant's counterclaim at the opening of the trial, and for denying a motion for judgment on the pleadings at the opening of the trial. It is also contended that the court erred in submitting plaintiffs' counterclaims to the jury, and in denying a motion to strike the counterclaims at the close of the case. Lastly, it is contended that the motion for judgment notwithstanding the verdict should have been granted, because of the insufficiency of the evidence to support the verdict dismissing the plaintiffs' case.