#### TOBACCO GROWERS COOPERATIVE ASSOCIATION v. J. F. CHILTON.

(Filed 2 December, 1925.)

Contracts — Fraud—Evidence—Pleadings.

In order to render void for fraud in its procurement a tobacco marketing contract made in conformity with the provisions of our statute, it is required that the member seeking to do so must introduce evidence of the fraud he relies on, as well as allege it.

Appeal by defendant from Cranmer, J., at July Special Term, 1925, of ALLEGHANY.

Civil action to recover damages for breach of contract entered into between the parties and in which the defendant agreed to sell and deliver *603to the plaintiff all the tobacco produced by or for him or acquired by him as landlord or lessor during the years from 1922 to 1926, both inclusive.

From a verdict and judgment in favor of plaintiff, the defendant appeals, assigning errors.

Burgess & Joyner and Kenneth G. Boyall for plaintiff.

Folger & Folger for defendant.

Stacy, C. J.

The plaintiff is a cooperative marketing association, organized under “The Cooperative Marketing Act” of this State, chapter 87, Public Laws 1921, the constitutionality of which was sustained in Coöperative Asso. v. Jones, 185 N. C., 265. The defendant is a farmer engaged in growing tobacco in Surry County. Under the standard marketing agreement, entered into between the parties, the defendant agreed “to sell and deliver to the Association all of the tobacco produced by him or for him or acquired by him as landlord or lessor, during the years 1922, 1923, 1924, 1925, 1926.” The defendant concedes that he has not complied with his agreement. He alleges fraud in the execution of the contract and seeks to avoid it on this ground. From a careful perusal of the record, we are unable to discover any evidence to support the defendant’s allegation of fraud. For this reason, his defense must fail. Pittman v. Tob. Gro. Asso., 187 N. C., 340. Allegation without proof is unavailing, unless admitted or not denied. Dixon v. Davis, 184 N. C., p. 209.

The record presents no reversible error, hence the verdict and judgment will be upheld.

No error.