¶1The court properly held the defendant bound by his bill of particulars as to what the fraudulent acts of the plaintiff were, and since there was no complaint that a catalogue was not sent to him, or that the plaintiff had failed to furnish a bond as required, these were not facts of which he could take advantage on the trial. Fraud is never presumed, and the court having rightly decided that there was no proof that any of the representations made by the plaintiff was false there was nothing to submit to the jury. The contract was in writing; its execution was admitted, and it was not proper to submit to the jury the question what the contract was. If a judgment had been returned in favor of the defendant it would have been the duty of the court to set it aside.
¶2The judgment is affirmed.