Was there sufficient allegation of fraud and any evidence thereof, warranting the submission of the second issue to the jury?
It is established law in this State that, in pleading fraud, the facts constituting fraud, must be clearly alleged in order that all the necessary elements may affirmatively appear. Nash v. Hospital Co., 180 N. C., 59; Lanier v. Lumber Co., 177 N. C., 200; Colt v. Kimball, 190 N. C., 169.
The only facts alleged as constituting fraud are as follows: “That the plaintiff is not an educated woman and is only capable of writing her name, and if any such statement was made upon the face of said check, her attention was not called to it; she did not see it at the time it is alleged that said check was given to her and accepted by her and cashed by her.” This is not a sufficient allegation of fraud. Colt v. Kimball, supra.
Nor is there sufficient evidence of fraud to be submitted to the jury. The only testimony relied upon from which fraud could be inferred is that plaintiff testified that Mattie Cobb gave her the last check that had the entry “for services and board of George H. Troxler to date,” written thereon, and that she thought it was for board like the other checks that had been given her; that she had no education and that she could read and write a little bit, and that she did not know why the memorandum was written. There is no suggestion that the defendant was present when the check was delivered to her or made any statement to the plaintiff about the check, or in any way or manner prevented her from reading the check or ascertaining its meaning, or hav*497ing the entries thereon explained to her. This testimony of plaintiff constituted no evidence of fraud, and where there is no evidence to support an issue, it should not be submitted to the jury. Brown v. Kinsey, 81 N. C., 245 ; S. v. Prince, 182 N. C., 790; Markham-Stephens Co. v. Richmond Co., 177 N. C., 364; Colt v. Kimball, 190 N. C., 169; S. v. Martin, 191 N. C., 404.
The defendant in apt time requested the court to charge the jury as follows: “I charge you that if you find the facts to be as shown by the evidence in this case, you will answer the second issue, no.” His Honor refused to so charge the jury. Under the evidence in this case the defendant was entitled to this instruction. Markham-Stephens Co. v. Richmond Co., 177 N. C., 364.
The plaintiff contends that the second issue was immaterial, but an examination of the record will disclose that the first and second issues were so closely related and interwoven that a consideration of the second issue no doubt had a bearing upon the answer to the first.
There are other serious exceptions as to the effect of the memorandum on the check in controversy, and as to the competency of evidence. ¥e express no opinion as to these exceptions.
New trial.