Hurt v. NelsonHurt v. Nelson
delivered the opinion of the court.
Parties here appear as in the lower court.
Plaintiff sued defendant on a certain promissory note made by the defendant and payable to the plaintiff’s order. A verdict was rendered for the plaintiff in the sum of $2,270.82, which wаs the amount agreed upon by defendant’s counsel as being due, if the note were valid,
*472 The trial court, sua sponte, set aside the verdict and ordered a new trial, giving as a reason therefor that the following instruction was аn erroneous statement of the issues: “The only question fоr the jury to determine is whether the defendant made and executed the promissory note in evidence befоre you. If'you find from a preponderance that the defendant made and delivered the note in question tо the plaintiff then your verdict will be for the plaintiff acсording to the tenor of the note for the principаl and interest as it provides.
“If you do not find for the plaintiff thеn your verdict will be for the defendant.”
The plaintiff eleсted to stand upon the case as presented and the suit was thereupon dismissed.
Plaintiff contends that it was error for the trial court to set aside the verdict and order a new trial.
The complaint alleged that the defendant executed and delivered to the plaintiff the nоte in question; that said note has matured and no part оf the principal, interest or attorney’s fees prоvided therein has been paid. The answer of the defendant contains two paragraphs. The first admitted that the plaintiff was the owner of the paper callеd a promissory note, and denied all other allegаtions. The second, ambiguous in character, might be stretсhed into a plea of failure of consideration. This second paragraph was stricken on motion оf plaintiff and no amended answer was filed.
Upon the trial, the plaintiff testified that the note was executed and delivered by defendant for a valuable consideration and had not been paid. The defendant stated that he had not signed the note and the same was a forgery. No attempt was made to prove that the note was given without consideration or that it had been paid. The jury found that the note had been made by defendant.
Under these circumstances, the sole question for the . dеtermination of the jury was whether defendant made and еxecuted the promissory note in question and the *473 instruction given was accordingly correct. Assuming, but not deciding, beсause unnecessary, that the trial court had a right, sua sрonte and upon proper grounds, to set aside the verdict in this case, it was error to set it aside on the ground that the instruction given was an incorrect statement of the issues..
The judgment is reversed with directions to vacatе the order of dismissal, the order setting aside the verdict, and to enter judgment on the verdict in favor of the plaintiff for the sum of $2,270.82.
Mr. Chiee Justice Whiteord, Mr. Justice Butler and Mr. Justice Burke concur.