| Wis. | Jul 16, 1859
By the Court,
We think, in this case, that the instruction asked for by the defendants’ counsel, and refused by the court below, should have been given. The action was brought to recover a balance on an account. The defense was that the balance had been paid by transferring to the plaintiffs
The question submitted to the jury by the court below was, whether this note was received as absolute payment or not; and they were told that in determining this, they should consider the whole evidence. This, taken alone, was entirely unobjectionable. But the defendants were still prejudiced by the refusal to give the instruction asked. Because we think it clear that this instruction was correct; that is, that the account of the plaintiffs, receipted in full, showing that it was balanced in part by the Cramer & Becker note, together with the note indorsed by the defendants without recourse, was sufficient prima facie to show that the note was transferred in absolute payment of the account.
Although the court therefore submitted it to the jury, on the whole evidence, yet the defendants may clearly have been prejudiced by telling them at the same time, in refusing this instruction, that these items of evidence were not sufficient prima fade to establish the defense, when in reality they were sufficient. Because, though the jury considered the whole, yet, under this refusal, they would have allowed to these particular items less weight and effect than they were entitled to, and that very deficiency may have been all that was lacking in the minds of the jury to have supported the defense.
It was also argued that the judgment should be reversed for error in refusing a new trial, on the ground that the verdict was unsupported by the evidence. But we shall express no opinion upon this point, as we think the judgment must be reversed for the reason before stated.
The judgment is reversed.