McClelland

Action on promissory note indorsed to plaintiff before maturity. The defense was that the note was given to plain tifPs indorser, one TJnruh, as evidence of a deferred payment under an executory contract for the sale of certain land and water stock; that said contract and the note were procured through the fraudulent representations of TJnruh as to the character of the land, and that plaintiff took the note with constructive notice of the fraud. Defendant had judgment, and plaintiff appeals therefrom and from an order denying him a new trial, his principal contention being that the evidence does not warrant the verdict.

It cannot be said that there was no evidence to justify the jury in finding that plaintiff was not an indorsee for value in due course. We think it very strongly tended to show that plaintiff really took and held the note merely for collection.

*149 But we are clearly of the opinion that there was no evidence legally tending to establish the alleged fraud on the part of Unruh; that the only representations as to the character of the land were in their nature mere matters of opinion, and in no sense representations of substantive facts which may be made the basis…