Mr. Justice Higbee
delivered the opinion of the court.
3. Fraud, § 89*—who has burden of proving. Fraud is never presumed, but must be affirmatively alleged and clearly established, and the burden of proving an allegation of fraud is upon the party making such allegation. 4. Bills and notes, § 462*—when instruction in action on note is improper as to interest and as to attorney's fee. In an action on a note, where the space for the rate of interest was left blank in the note, and wh.ere it was provided that if the note should be collected by suit or foreclosure the judgment or decree should include a reasonable attorney’s fee, and that such fee should become due upon commencement of a suit on the note or the filing of a bill to foreclose, and an instruction was given telling the jury that if they believed that plaintiff was entitled to recover, the judgment should be for the face value of the note together with interest from the date of the note, and such attorney’s fee as might be shown by the evidence to be due, held that such instruction was improper both as to interest and attorney’s fee, as the note only drew interest from maturity and the attorney’s fee did not become due upon the failure to pay at maturity. 5. Bills and notes, § 477*-—when judgment may not include attorney’s fee. Where a note provides that if it is collected by suit or foreclosure the judgment or decree shall include a reasonable attorney’s fee and that such amount shall become due upon commencement of suit on the note or the filing of a bill to foreclose, such fee does not fall due until after the institution of suit, and the amount of such fee cannot be included in the judgment on the note, but a separate suit must be instituted if the fee is to be recovered. 6. Bills and notes, § 90*—when note draws interest only from maturity. Where a note contains no provision as to interest, the same can only draw interest from maturity. Free access — add to your briefcase to read the full text and ask questions with AI