Martin v. Foster , 83 Ala. 213 ( 1887 )

SOMERVILLE, J.

— The note sued on certainly imported a consideration upon its face, prima facie, and the burden of proving the want of consideration was cast on the defendant; and if the question of a legal consideration was left in doubt by the evidence bearing on that point, the pre- ■ sumption created by tire note would prevail, and thus entitle the plaintiff to recover. The first charge given by the court, at the plaintiff’s request, and announcing the foregoing proposition, was correct.

The main point insisted on by the appellant’s counsel, in the brief on file, seems to be, that the plea of a want of consideration would be sustained, if the jury believed that the money purporting to be due by note from the defendant to the plaintiff, was, in truth and fact, advanced by the payee to be invested by the maker on their joint account in a partnership enterprise. Admitting the correctness of the contention, there is no ruling made by the court below which raises this question for our review. The written charge requested by the defendant, which is supposed to present the question, fails to do so. It is defective, in failing to submit to the- jury the credibility of the testimony on this point. “The fact,” reads the charge, “if it be a fact, that the defendant testified that the note sued on was given for money to be invested by defendant in the purchase of mules and ponies, or other stock, under an agreement,” etc., such testimony would tend to show a want of consideration. It may be that the facts testified to by this witness, if believed by the jury, would tend to- prove the proposition contended for; but the mere act of testifying itself could have no such tendency, unless the facts testified to were believed to be true. In other words, the verdict of the jury is made to turn, not upon the belief of certain facts as true, but upon the belief that the defendant had testified to their truth. It is manifest that this charge was properly refused by the court.

The giving of the second charge requested by the plaintiff was free from error.

Judgment affirmed.