#### Pierce, Appellant, vs. Stolhand, Respondent.

*December 9, 1909*

January *11, 1910.*

*Bills anti, notes: Consideration: Services: False representations: Evidence: Presumptions: Matters of opinion.*

1. An agreement to perform services is a sufficient consideration for a note.

2. Proof that more than a year after plaintiff represented that she was the only person who could teach dermatology other schools of dermatology were advertised, did not show falsity of the representations, there being no presumption that such schools existed at the prior date.

.’[3. Whether or not such a representation related to a mere matter of opinion and hence, even if false, did not constitute actionable fraud, not determined.]

Appeal from a judgment of tbe circuit court for Milwaukee county: WaeREN D. TaebaNt, Circuit Judge.

*Reversed.*

This action was brought to recover on a $200 note given in part payment for services to be performed for defendant by way of instructions in dermatology. Under the agreement $300 was paid in cash and a note given for the balance of the agreed price of the instructions. The answer sets up- fraud by way of false representations on the part of the plaintiff. A counterclaim was also pleaded setting up fraud and want of consideration and demanding recovery of $300 paid to> plaint iff at the time of execution of the note. The case was tried by the court and a jury. Only three questions were submitted 'to the jury: (1) Ealsity of the representations; (2) reliance upon them; (3) defendant’s freedom from negligence. The court refused to submit the question of damages. The jury answered the three questions submitted in favor of the defendant. Plaintiff moved for a directed verdict, for judgment notwithstanding the verdict, and for a determination by the ■court of the issue of damages and other omitted issues, which motions were denied. Judgment was ordered for the defendant upon the verdict for $497, damages and costs. It was *287further ordered that plaintiff pay $10, costs- -of motion for .judgment Due exceptions were filed by the plaintiff. Judgment was entered accordingly in favor of the defendant, from wbicb this appeal was taken.

*James D. Shaw,*for the appellant.

Eor the respondent the cause was submitted on the brief of *A. 0. Umbreit.*

KeewiN, J.

The execution and delivery of the note being •admitted, the burden was- upon the defendant to prove her defense and establish the counterclaim. The note bears date January 16,1900, and it appears that it was given for services to be performed after its execution. The evidence tends to •show that prior to the execution of the note the plaintiff was ■engaged in business in the city of Milwaukee as a dermatologist and receiving for her services $4 per hour; that defendant applied to her to be instructed in the art, and was informed by plaintiff that a course of instructions would cost $.500. The defendant, thinking the price high, made some investigation upon the subject and conferred with a reputable physician ■of Milwaukee and returned to plaintiff and closed the contract by giving the note in question and paying $300 in cash. The defendant received instructions from plaintiff at various times covering a period of four or five months, and in June, 1900, began work as a dermatologist in the city of Chicago and remained there about a year, during which time only two patients called upon her for treatment. She then gave up the business and shortly thereafter had a talk with plaintiff, in which she said she could not pay the note, but made no ■claim that she had been defrauded. The alleged false representations complained of are that plaintiff represented that no ■one else could teach defendant and that she could not get instructions elsewhere for less than $500; that plaintiff told defendant that she had instructed, other women who were as proficient as plaintiff, and that there was no other school than *288that taught by plaintiff. There is no doubt but that the agreement to perform the services was a sufficient consideration for the note. *Schoenmann v.*Whitt, 136 Wis. 332, 117 N. W. 851; *Marling v.*FitzGerald, 138 Wis. 93, 120 N. W. 388. Counsel for respondent seems to base his claim for affirmance-upon fraud and want of consideration. As before observed,, the agreement to perform services was a sufficient consideration, and there was no failure of consideration because it is-undisputed that services were performed under the contract.. Of course, if no actionable fraud was proved, then the respondent’s case falls and no other question need be treated.

It is insisted by appellant that the representations relied, upon by respondent as fraudulent to avoid the contract,, namely, that the plaintiff was the only person who could-teach dermatology, were not actionable, because not relating-to facts susceptible of personal knowledge, but merely matter of opinion under the rule laid down in *Montreal R. L. Co. v.*Mihills, 80 Wis. 540, 50 N. W. 507, and *Sheldon v. Davidson,*85 Wis. 138, 55 N. W. 161. But we find it unnecessary to decide this point, because we fail to find sufficient evidence to support a finding that the representations made were false. They were made in January, -1900. The evidence upon-which defendant bases the falsity of the representations is in effect that after defendant gave up her office, which was more Ilian a year after the representations are claimed to have been made, she learned through magazine articles or advertisements and by calling upon people in Chicago and New York that there were other schools. Now this evidence falls far short of establishing that the representations, even if actionable, were false when made. The fact that other schools were advertised more than a year after the representations were made- and offering to furnish instructions for $7 5 did not establish that schools existed a year earlier where defendant could have been taught the art. There is no presumption that, because schools existed at a particular date, they existed a year ante*289rior to such. date. Presumptions do not run backward. *Ellis v. State,*138 Wis. 513, 119 N. W. 1110; *State ex rel. Milwaukee Med. Coll. v. Chittenden,*127 Wis. 468, 107 N. W. 500; 1 Greenl. Ev. § 41.

Holding as we do that'the defendant failed to prove that the representations were false, no other questions need be considered.

Judgment should have been directed for the plaintiff for the amount due upon the note sued upon.

*By the Court.*— The judgment of the court below is reversed, and the cause remanded with directions to enter judgment for plaintiff in accordance with the demand of the complaint.