Wehner

This action was brought to recover upon a promissory note for $1,000, dated September 30, 1902, a copy of which is set forth in the complaint. The answer of the defendant contained no denial as to the due execution and delivery of the promissory note, but alleged in effect that the note was executed without consideration. The case was submitted upon the evidence of plaintiff, and judgment entered in favor of defendant. The court afterward, upon due consideration, granted the motion of plaintiff for a new trial upon the ground of the insufficiency of the evidence to sustain the judgment. This appeal is from the order so made granting a new trial.

In our opinion the court was justified in granting the new trial. The plaintiff had a promissory note duly made and delivered by defendant to him. Defendant had paid $30 interest on the note up to March 1, 1903. The law raises the presumption that the promissory note was given for a consideration. The burden was upon the defendant to show that there was no consideration for such note. The evidence of plaintiff tends to show that the defendant had, by reason of certain business matters, used $25,000 of plaintiff’s money for about seven…