Talmadge

1. There was a substantial conflict in the evidence with reference to the truth or falsehood of the matter set up in defendant’s answer.

2. The receipt was admissible, as there was evidence tending to prove that it was executed and delivered contemporaneously with the note; that both papers were parts-of one contract or transaction.

3. The oral testimony was admissible to apply the receipt to the note, to prove that it was given in return and as the only consideration for the note:

4. The plaintiff requested the court to instruct the jury: “If the jury find from the evidence that the note was given to secure to the plaintiff money which plaintiff had advanced for defendant, on account of the defendant’s share of the capital, which he was to contribute and invest in the business, then the note is supported by a sufficient consideration, and the plaintiff is entitled to recover, although the plaintiff and the defendant were partners at the time of the giving of the note. ’ ’

Appellant assigns as error the refusal of the court below to give the foregoing instruction.

It is said by respondent there was no evidence upon which to base the instruction. But the plaintiff testified:…