The answer sets up two defenses: First, that the note sued on was not signed by the appellee; second, that the application for the policy was procured by misrepresentations of the agent of the insurance company, and that it was not to be accepted by the appellee until he should have an opportunity to examine the policy. Appellants requested the court to instruct the jury to return a verdict in their favor, which was refused, and exception saved.
The policy came into the hands of the appellee on October 5, 1897, and was retained by him in his possession nntil January 8, 1898. The court properly instructed the jury that, if the note sued on was executed by appellee, he could not rely upon the second defense above set out, and refuse to pay the note, while enjoying the protection which the policy afforded him. The only question, therefore, which it *364could have been proper to submit to the jury, was whether or not the appellee executed the note sued on. The appellee was examined as a witness, and, while admitting that the signature to the note appeared genuine, he stated that he did not sign it. The agent of the appellants testified that he was present and saw the note signed by the appellee. Several expert witnesses were examined, and all testified that the signature to the note was identical with those admitted to have been signed by the appellee. In addition to this, by writ of certiorari, the original note sued on, together with other papers bearing the admitted signature of the appellee, is before us, and there can be no doubt of the genuineness of the signature to the note. We do not think the jury was justified in basing its verdict on the theory that the note was a forgery, and the instruction for a verdict for appellants should have been given. “It is well settled by all the authorities that, where there is not sufficient evidence of the facts essential to the * * * defendant’s affirmative defense, a verdict should be directed.” Railroad Co. vs Nicholas 3 Ind. T. 40(53 S. W. 475.) See 6 Enc. Pl. & Prac. (N. S.) 686, and cases cited. From the evidence before the jury, no impartial man could have found but that the defendant signed the note. Let the judgment of the lower court be reversed, and the cause remanded for a new trial.
Thomas and Gill, JJ., concur.