The contention of respondent is, that this case is parallel with that of Johnson v. Mc-Murry (72 Mo. 278), and that the court below pursued the law as declared in that case. It may be conceded that the evidence in the two cases is quite alike ; but the course pointed out in Johnson v. McMurry, as the proper one to be pursued at the trial, was not, in my opinion, observed in this case.
Under the pleadings, the defendant assumed the burden of showing that the note in suit was fraudulently obtained by the payee and was without consideration. Conceding that this evidence was sufficient -to go to the jury on the prima facie case made by defendant’s proof, it' then became, on the authority of the case, supra, “incumbent upon the holder to prove that he received it (the note) bona fide, before maturity and for *184value. He is not required, however, to prove that he had no knowledge of the specific facts which impeach its original validity. When the general proof is made by the holder that he received the paper before due, bona ;fide, and for value, it then devolves upon the maker to prove that the holder had actual notice of the specific facts which would render it originally invalid; otherwise the plaintiff must recover.”
The plaintiff did offer the requisite proof that he purchased, the note in good faith, before maturity, and paid a valuable consideration therefor. But the defendant offered no such countervailing .proof — nothing to balance the proof of the plaintiff, but left the case to rest solely on his proof of the fraud and failure of consideration.
It is true that the defendant was entitled, notwithstanding his failure to introduce the countervailing •proof, to have the whole case submited to the jury (Johnson v. MoMurry, supra; Kenny v. Ry. Co., 80 Mo. 573; Cannon v. Moore, 17 Mo. App. 102 ; Boone v. Wabash, etc., Ry. Co., 20 Mo. App. 232); but the court should have guided the jury, by proper instructions, in their duty.
The court, when it undertook to instruct the jury on the whole law of the case, should have advised them in direct terms, that it devolved upon the defendant to rebut the prima faeie case made in favor of the plaintiff, by the assigmentand possession of the note, by showing, to the satisfaction of the jury, that the same was fraudulently obtained from him by the payee, without consideration ; that thereupon it devolved upon the plaintiff to show to the satisfaction of the jury that he purchased the note before maturity, in good faith, and for a valuable consideration, and that then it devolved upon the defendant to overcome this proof by plaintiff by further evidence that plaintiff had actual notice of the specific facts of fraud invalidating the note when he took it, and that the defendant had introduced no such proof.
*185Instead of this plain and obviously fair course to both parties, it is apparent, from the tenor and phraseology of the instructions given by the court, that it gave the plaintiff the laboring oar throughout. The first instruction told the jury, that if they believed from the evidence that the note was procured by fraud and without consideration, it then devolved on the plaintiff, before he can recover, to show “by a preponderance of the testimony in the case, that he purchased said note in good faith,” etc.
Why apply this term “preponderance” to the plaintiff any more than to the defendant? It was simply the instance of the balancing of testimony. The prima facie case was first with the plaintiff as the holder of the note. The burden rested on the defendant to show the fraud, etc., in its inception. When he did this, it devolved on the plaintiff simply to rebut this proof, by showing that he was an innocent purchaser, before maturity, for value. The defendant had not introduced one word of proof in conflict with that so made by plaintiff. There being no conflict of evidence on the issue as to whether the plaintiff was such purchaser, what was there for his proof to outweigh ?
In Clark v. Kitchen (52 Mo. 316), the court criticised such an instruction in a case where it was less calculated to mislead than here. There was conflicting evidence in that case. The court says: “Th& preponderance of evidence are (words) with the average jurors susceptible of, and very likely to receive an infinity of, constructions.”
It is true that in Berry v. Wilson (64 Mo. 164), the court say that such language would not necessarily demand a reversal of the judgment; but the learned judge was careful to say: “In the connection in which it now appears.” That, it is to be observed, was the instance where there was a conflict of evidence, and the burden rested on the plaintiff.
In the case at bar, the employment of the word in the *186instruction was greatly calculated to mislead the minds of the jury. As it was not employed in connection with the proof the defendant was required to make, touching the fraud, etc., its use in connection with the proof the plaintiff was required to make, was calculated to impress the jury with the thought that the plaintiff should do something more than merely rebut the prima facie case made out by the defendant. And as they could not see that his proofpreponderated over that made by the defendant on his branch of the defence, their verdict must be for the defendant. In fact, it is difficult to see how, on the evidence as the defendant left it at the trial, the jury could have found for the defendant, but on some misconception of the import of the term “preponderance,” as applied solely by the court to the plaintiff ’ s side of the case. It is remarkable that after the court instructed the jury that it devolved upon the plaintiff to make out his case by a preponderance of the evidence, it should then accord to the defendant the opening and closing-argument to the jury, based on the ground that the bxurden of proof rested on the defendant.
I think that common fairness and the ends of justice demand, under the peculiar circumstances of this case, that the judgment of the circuit court should be reversed and the cause remanded, to be further proceeded with in conformity with this opinion. Ellison, J., concurs in the result; Hall, J., dissents as to so much of the opinion as holds that the word “ preponderance” in the instruction constitutes reversible error.