State Bank of Fairfax v. Blum , 52 N.D. 530 ( 1925 )

This is an action upon a promissory note. The complaint is in the usual form. Among others, the defendant interposed the defenses that the note was executed and delivered without consideration, and upon certain conditions which were not fulfilled. The case was tried to a jury. A verdict was returned in favor of the defendant and judgment was entered accordingly. The appeal is from the judgment and from the order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial.

Error is assigned upon the following instruction:

"It is incumbent upon the plaintiff before it can recover in this action to show by a fair preponderance of the evidence that the notes were given for a consideration and that it was agreed between the parties at the time the notes were made and delivered that the defendant should be personally liable for the amount of said notes."

Under the rule announced in First State Bank v. Radke, 51 N.D. 246, 35 A.L.R. 1355, 199 N.W. 930, this instruction is incorrect. And we are agreed that in view of the state of the evidence in this case, it cannot be said that it was non-prejudicial.

Reversed and remanded for a new trial.

BIRDZELL, BURKE, NUESSLE, and JOHNSON, JJ., concur.