ON APPLICATION FOR REHEARING
No. 2049.
By THE COURT:We- have an application for rehearing, together with a letter from Mr. Vandenbrock presenting argument why we should reverse the conclusion reached in our opinion.
Our rules now make no provision for applications for rehearing and there is nothing in the application or the ietter which presents any question, of substance, which we did not fully consider in our former opinion.
The defense of the appellee was most capably presented both in the trial court and in this Court. Counsel urged and briefed every defense that could possibly have been interposed upon the facts adduced at the trial.
It is urged on the application that the trial court erred in not admitting testimony from other advertisers who had con*320tracted with the plaintiff to the effect that they, too, had been misled by the form of the contract presented to and signed by them. We directed attention in our former opinion to the fact that the trial judge did not, as appeared by his written opinion, find any fraud of the plaintiff established. However, we discussed and analyzed the defense of fraud. Other similar acts are admissible in fraud cases if they have the effect of showing the intent with which the fraudulent act was committed. However, such similar acts are only admissible when and if there is basic proof of conduct or representation, which in itself may be found to be fraudulent. U. S. Life insurance Co. v. Wright, 33 Oh St 533. The first element of fraud is that there be a representation made as a statement of fact and that it was untrue. Until this is established another element, namely that the mis-statement was made with intent to deceive, is of no concern.
The trial judge was logical in refusing to admit the testimony proffered by other advertisers.
Although this question is not properly presented we have considered it. Sec. 12223-1 GC, Rule 7, Rules of Practice; 81 Oh Ap xliii.
In the letter, it is argued that there was collusion between one of the companies with which defendant had placed his ad and the plaintiff, in that the copy of the ad was a proof from one of the companies with which defendant had contracted. That there was collusion is purely conjectural, but that the copy was taken from another directory is testified by the secretary of plaintiff and by the defendant. The contract which defendant signed will bear no interpretation that any part of it was tendered to the defendant as a proof. On the contrary, it was stated that it was a copy which “appears in another publication and this form is not a renewal or proof but, if signed and returned, is an authorization to publish an advertisement in our directory.”
We have never doubted the claim of the defendant that he was misled by the form of the contract which he signed, but that fact is insufficient as a legal defense because he failed to exercise that degree of care and attention which was enjoined upon him before placing his name on the contract.
The application will be denied.
MILLER, PJ, HORNBECK and WISEMAN, JJ, concur.