The court is unable to see from the testimony any adequate consideration for the note in question. It was not given for a purchase of Kerr's interest in the saloon, for he and the defendant continued as partners for a long time after the date of the note. It does not appear to have been given as a settlement upon a stated account, because Kerr says it was not the whole of what was due him, *Page 281 and that the partnership accounts have never been settled, and that there were items of the account at that time which still remain. Kerr says it was for money which he put into the saloon, but that fact is not at all clear from the testimony. His conduct is inconsistent with such a claim, because he made no demand upon the defendant on the note while he held it, nearly a year and a half, although the defendant was amply able to pay, and received no interest on it, according to its tenor.
The non-payment of annual interest would clearly render the note overdue in the hands of the plaintiff, and therefore subject to the equities between the original parties.
The refusal to charge as requested about the note as collateral security for a balance due to Kerr when ascertained, was rightly refused for lack of testimony tending to show any such undertaking or from which it could be inferred. Otherwise such request should have been granted. The second request was too broad in its terms and was rightly refused.
The verdict is against the evidence, and a new trial is granted and the case will be remitted.