This is an action of assumpsit, brоught in the circuit court of Webster county, by C. Me. Dodrill, against Sherman Gregory, administrаtor of the estate of Y. S. Gregory, deceased. Dodrill haying died, the action was revived in the name of his executors. The object of the action is to recover the balance claimed to be due on a note executed by Y. S. Gregory, in his life time, to C. Me. Dodrill. The defendant filed two spеcial pleas, which, however, are not copied into the reсord, and also filed the plea of non-assumpsit.
On the trial, which resulted in a judgment in favor of the plaintiffs, it was admitted that the note sued on was found in the papers оf Y. S. Gregory after his death.
The plaintiffs claim that the note in question was left with Gregory by Dodrill, for the purpose of having Gregory to indorse a credit thereon, and that it has not been paid. The jury, after hearing all the evidence, found this fact for the plaintiffs, which was approved by the trial judge, and we cannot disturb this finding, unless the evidence wholly fails to establish the plaintiffs’ casé. Upоn a review and careful consideration of the evidence, we nоt only conclude that the verdict is justified thereby, but think it is eminently proper.
The defendant complains that the court improperly instructed the jury for the plaintiff. The first instruction told them that the burden was on the defendant to show, by a
But again, in instruction No. 2, the court fully instructed the jury upon this question. They were told that the possession of the note was prima facie evidence of its payment, and in the absence of proof to the contrary, such evidence would create a presumption of payment, and were further told that whilе such presumption would arise from its possession, yet it could be rebutted by proof to the contrary; and in instruction “A,” for the defendant, the court instructed the jury that the possession of a note for the payment of money, after it falls due, is presumptive evidence of the payment thereof.
Instruсtion No. 2 is also criticised because it is said that the jury were not directed to be controlled by the evidence, but that they are told “if they believe, ” and not that “if they believe from the evidence,” that they.should find, etc. We do not think this instruction subject to this criticism, because it does not omit to tell the jury that they shall be governed by the evidence, but this fact is especially called to thеir attention in the beginning of the instruction, wherein the court instructs them that in arriving at thеir verdict, only such evidence as was actually introduced, and not any evidence sought to be introduced and excluded by the court, is to be cоnsidered by them. And then, again, in another part of the instruction, the evidence is referred to. Therefore,
The judgment of the circuit court is, therefore, affirmed.
Affirmed.