Mr. Justice Smith
delivered the opinion of the court.
6. Fraud, § 19*—when representations of physician are not fraud and misrepresentation. In an action to recover on a note given a physician for medical services, statements of the payee that he was a specialist and cured chronic diseases, that the makers of the note were ill and had certain ailments and he could cure them, are not fraud and misrepresentation which will constitute a defense to the note in the hands of a third person, a holder in due course, even though the payee had no intention of performing his promise. 7. Fraud, § 19*—when promise to do an act without intention of performing not misrepresentation. An agreement to do an act without the intention of doing it is not a misrepresentation of an existing fact. 8. Bills and notes, § 443*—when defense of failure of consideration not established. The allegation in the affidavit of merits in an action to recover on a note given for medical services, that there was a failure of consideration, is not sustained where no evidence is introduced in support thereof. 9. Bills and notes, § 259*—when indorsee a holder in due course. Evidence examined and held to show that plaintiff was a holder in due course of the notes in suit, and took them free from the defenses of fraud and failure of consideration. Free access — add to your briefcase to read the full text and ask questions with AI