If there was any error committed by the court below, it is one of practice and of so slight importance and consequence that we are unwilling to remand the case for a new trial. No possible injury could have been sustained by the defendants in the matter complained of. It would have been more regular if the witness had been asked such questions as were calculated to show that he had endorsed the note, the circumstances attending the endorsement, i. e., that he had endorsed it at the request of the defendants and for their (419) benefit, and his payment of it by the judgment of the law. The note could then have been proved and received as evidence of the endorsement and in corroboration of the witness. This is, however, not the defendant's appeal, and the plaintiff, of course, had nothing to appeal from as to the manner of the introduction of the evidence because his Honor admitted it. The plaintiff's appeal is from the judgment of nonsuit taken in deference to the intimation of his Honor that the plaintiff could not recover upon the testimony as received. So the real question in the case is, does the testimony offered and received, conceding it to be true, constitute a cause of action against the defendants and render them liable to the plaintiff as alleged in the complaint? We are of the opinion that the matters contained in the evidence, if true, make the defendants liable to the plaintiff on the cause of action set out in the complaint. The note, though executed by other persons than the defendants, was, according to the evidence, made for the benefit and advantage of the defendants; it was endorsed by the plaintiff at the express request of the defendants.
The maker of the note had no interest in it at any time and received no consideration for it. Of course, the fact that the makers received no consideration would not affect their liability to the payee, but it turned out that they were insolvent and the debt fell upon the plaintiff, who paid it after judgment was recovered against him for the amount. The testimony, if true, showed the payment by the plaintiff was for the use and benefit of the defendants under such circumstances as that the *Page 290 law will imply a promise to repay on the part of the defendants. Burns v.Parish, 3 B. Mon. (Ky.), 3. The judgment of nonsuit is reversed and there must be a
New trial.
Cited: S. c., 122 N.C. 630.
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