Eight men associated under the name “Percheron Breeders Society of Maine” bought a stallion of one R. I. James making payment by two joint and several promissory notes for nine hundred dollars each signed by all the purchasers. The payee indorsed and transferred the notes before maturity to E. W. Judkins the plaintiff. The three suits now under consideration are brought on these notes, against three of the makers.
The plea in each case is the general issue with a brief statement that the plaintiff “is not a bona fide holder for value” and also setting up total failure of consideration and fraud.
The jury by special verdict found that the plaintiff was not a bona fide holder for value. This finding was abundantly justified. The suit's, therefore, are open to all defenses that could be made as between the original parties.
*232Besides the special interrogatory above referred to, the jury were required to answer this question — “What was the difference if any between the market value of the stallion at the time of the sale and his market value if he had been in the condition guaranteed by Mr. James?” To this question the jury answered “Fifteen hundred dollars.”
No other issue was submitted to the jury.
Upon receiving the answers to the tv?o special interrogatories (it appearing that $400 had previously been endorsed on the notes) the presiding Justice directed a general verdict for the defendant. The plaintiff, excepted. He also filed a motion for a new trial.
The directed verdict cannot be sustained on the ground of total failure of consideration. The defendants received title to and possession of a stallion. Their own testimony shows that the animal had a value of two hundred dollars. This was an inadequate consideration. But inadequacy is not failure of consideration. Furber v. Fogler, 97 Maine, 588.
The defenses of total failure and partial failure of consideration depend upon different principles.
The defendant who pleads total failure denies the consideration. His defense traverses an essential allegation in the declaration. It may, therefore, be shown under the general issue. McCormick v. Sawyer, 108 Maine, 407. But the defense of partial failure admits the contract. Its purpose is the avoidance of circuity of action. Its effect is the reduction of damages. Hathorn v. Wheelwright, 99 Maine, 354. Breach of warranty creates such partial failure. It, however, must be specially pleaded. This is true at common law. McCormick v. Sawyer, 108 Maine, 408. It is equally true under the Negotiable Instruments Act. Indiana Flooring Co. v. Rudnisk, 236 Mass., 92.
In these cases the defendants pleaded fraud, but we do not understand that a warranty is claimed. At all events it is not pleaded.
If the general verdict for the defendant was properly directed and rendered it was because of fraud. But whether fraud exists or not is an issue of fact. Fraud is never presumed. It must be clearly proved. Grant v. Ward, 64 Maine, 240; Frost v. Walls, 93 Maine, 412.
True, if fraud is so clearly proved that honest and fair-minded men could not reach a different conclusion; so manifest that a jury *233ver diet negativing it would be set aside, then in such case it would be proper for and would be the duty of the court to direct a verdict. Johnson v. Railroad Co., 111 Maine, 265. Lindsey v. Spear, 112 Maine, 233.
In the last analysis, therefore, the decision of these cases depends upon the answer to the question as to whether verdicts for the plaintiff would be set aside as manifestly erroneous.
Upon delivery of the stallion a written contract was signed and delivered by the parties. It granted to the Perdieron Breeders Society of Maine “the following described stallion to wit: Charles pure bred stallion No. 117812 color black steel gray.” The conditions of the contract are thus fairly summarized in the defendants’ brief.
“It acknowledged receipt by the vendor of the sum of $1800. It provided that if the stallion in good health and with proper usage did not get with foal 50 per cent of mares regularly tried and bred to him between the first day of May and the first day of July, 191 , then upon return of the stallion during the first week in April next following, sound and in good health and condition, to the vendor at Foxcroft, Maine, then the stallion would be exchanged for one of equal quality as the stallion sold. The purchasers by the contract, as a condition precedent to the right of return were required to keep a tally sheet of the same form as that attached and send same to vendor at Foxcroft by registered mail not later than July 15, A. D. 191 .”
The contract was signed by It. I. James. Incorporated as a part of it was an agreement signed by all the purchasers reading thus:
“This foregoing Bill of Sale contains all the representations and all the terms of agreement of the purchase of the above named stallion. We hereby acknowledge having purchased the said stallion on the representation and on the terms herein set forth, and no other.”
The evidence shows that the stallion sold, served, after such sale, fourteen mares, and that none of them were gotten with foal except one whose foal was born dead. The evidence also tends to prove that the stallion was worth about $200.
No misrepresentation of any specific fact is shown. The contract describes the stallion as pure bred. This is not disputed. *234If there is a representation that the stallion would get with foal-fifty per' cent, of mares served, this is a promise to be performed in the future, which promise cannot be made the basis of an action for or claim of fraudulent misrepresentation. Carter v. Orne, 112 Maine, 367; Lembeck v. Gerken, 86 N. J. L. 111 90 At. 698; Dawe v. Morris, 149 Mass., 188; Pile v. Bright, 156 Mo. Ap., 301; 137 S. W., 1017; Commonwealth Co. v. Barrington, (Tex.), 180 S. W., 936.
The written contract ingeniously avoids specific representations. No. oral representations are proved. Yet the whole transaction is questionable. Its very adroitness arouses suspicion. It subjects the purchasers to burdensome conditions. While literal construction was perhaps not contemplated such construction would limit the buyers’ remedy to an exchange of a practically worthless stallion for another equally worthless. Fraud vitiates a contract whatever its language. If fraud is clearly proved no contractual limitation of remedy can oust the courts of jurisdiction.
Assuming that there is sufficient evidence of fraud to support a jury verdict for the defendant, is fraud so clear and manifest as to justify taking the case from the jury and deciding as a matter of law that fraud is established? If a jury seeing and hearing the parties should believe and determine that the contract was entered into in good faith by all parties, would such verdict necessarily be set aside? Is the written contract necessarily fraudulent in the absence of any testimony of fraudulent knowledge or intent except as found within it?
These questions we have to answer in 'the negative. Whether or not the transaction was fraudulent should be determined by a jury.
Motion sustained.
New trial granted.
Dissenting note, Spear, J.