Whilе the burden of proof in an action upon a promissory note, as between the original parties, is upоn the promisee to establish the fact that it was given for a valuable consideration, the production of the note and proof “of the defendant’s signature establish a prima facie case which entitles the plaintiff to a verdict. But the burden of proving a consideration still remains upon the plaintiff, notwithstanding this presumption, and, if there is any evidеnce in the case on this point on behalf of the defendant, the plaintiff must show, by a preponderancе of the whole evidence, that the note was given for a valuable consideration. Burnham v. Allen,
Where a party hаving the burden of proof has given competent prima facie evidence of consideration, and the adverse pаrty seeks to meet it, not by producing proof that would negative this proposition, but by establishing another and distinct proposition, the burden of proving the latter proposition is upon him. Powers v. Russell,
The defendant in the case at bar offered evidence directly tending to show that the money delivered to him by the plaintiff was delivered to him as a gift from his father. He accounted or sought to account for the fact that a note was given for it, by evidence that it was uncertain whether this sum or a portion of it would not be needed by the plaintiff, who was his brother and his father’s administrator, for the payment of the father’s debts, in which case the defendant was to refund. This met directly the prima facie case of the plaintiff on the matter of consideration, and showed, if believed, that there was none, unless certainly the contingency that it would be wanted for the payment of debts had occurred, of which there was no evidence. The defendant had not sought to prove indepеndent facts which avoided the contract, or relieved him from its obligation; he had' met the plaintiff’s prima facie evidencе of consideration, and it was for the plaintiff still to satisfy the judge that a valuable consideration existed.
The рlaintiff’s own testimony was, that he had lent this money to the defendant as his own, using for that purpose money which had been given him by his father with which he was to pay certain debts, &c., retaining the balance to his own use.
The plaintiff’s contention suggests also, that the defendant sought to rely upon a failure of consideration, and thus that tire burden of proof was upon him. It may be conceded that, where there has been a good consideration, which consideration has wholly or partially failed, the burden of proving such failure is upon the party setting it up. Jennison v. Stafford,
The case of Delano v. Bartlett, ubi supra, which has often been cited with approval, strongly resembles that at bar. The defendant, who had pleaded want of consideration, there offered evidence that the sum received by him was his own money, and paid to him by the plaintiff, supposing the defendant to be entitled to it; but, as it depended on the settlement of certain partnership affairs whether he was so entitled, the note was given upon the understanding that, if it appeared that he was not entitled to it, the plaintiff might then call for the money due thereon, and thаt in fact the whole sum belonged to him. The plaintiff requested the court to instruct the jury, that the defendant must show the want оf consideration. But the defendant having produced evidence tending to overcome the plaintiff’s prima faeie cаse, and the proof on both sides being applicable to the same issue of consideration, it was held thаt the jury were properly instructed that the burden of proof was throughout on the plaintiff to satisfy the jury, upon the whole evidence, of the consideration of the note.
For these reasons a majority of the court are of opinion that the entry must be, jExceptions overruled.