This case is here upon appeal the second time. It was reversed and remanded at the former hearing a year ago (34 Mo. App. 404), has been tried again in the circuit court, resulting in a judgment for defendant Morris, but against defendant McFarland for the enforcement of a lien against, his land in the sum of $781.83, from which he has appealed to this court. For an understanding as to nature of the controversy we refer to Rice v. McFarland et al., 34 Mo. App. 404.
I. At the trial below the defendants offered defendant Morris as a witness by whom they wished to prove that Steam’s administrator, in the year 1883, notified him (Morris) that he, said administrator, then had in his possession the note sued on in this case, and that he had found it among the papers and effects of said Steams after his death, and that said administrator then asked him (Morris) to pay the note. To the introduction of which evidence plaintiff objected, on the ground that witness Morris was a party to the suit, etc., and said Stearns being dead said witness was disqualified from testifying in the cause. The court sustained the objection and the evidence was excluded. In this ruling. the trial court was clearly correct. While our *494statute has modified the common-law rule, and no longer excludes parties to the suit, or those otherwise interested in the event of the same, from testifying, yet, “'where one of the original parties to the contract or cause of action in issue’and on trial is dead, * * * the other party to such contract or cause of action shall not be admitted to testify, either in his own favor or in favor of any party to the action claiming under himf etc. R. S. 1889, sec. 8918. The italics above indicate the words inserted in the revision of 1889, as an amendment to section 4010, Revised Statutes, 1879. Morris is a party to the action, is a party, too, to the contract in issue, and whether offered as a witness in his own behalf, or in behalf of his codefendant McFarland, is subject to the exclusive words of this statute, and not a competent witness. Meier v. Thieman, 90 Mo. 433. Besides this the matter offered as evidence was mere hearsay, and for that reason, too, the evidence should have been excluded.
II. The court of its own motion, in addition to a direction to the jury to find, for defendant Morris (which is not here complained of) gave the following in the nature of a demurrer to the evidence of defendant McFarland, to-wit: “The court further instructs the jury that their verdict must be in favor of the plaintiff for an amount equal to the joint amount of the two notes given by Stearns to Rice, principal and interest, if the same does not exceed the amount of the note sued on, and, should it exceed said amount, then only for the amount of the note, principal and interest, from Morris to Stearns and Doan; and that the said amount so found to be due is a lien on the land mentioned in the petition.”
We regard the giving this instruction a serious error, and justly meriting the complaint of defendant McFarland. The vice of this direction to find for the plaintiff, as against McFarland, is that the court assumes *495as true an allegation in the petition which is controverted in the answer, and to disprove which there was evidence which should have been passed upon by the jury. The substantial matter of controversy between Rice and McFarland is, whether or not Rice, in the fall of 1877, acquired from Stearns a property right in the note or debt now sought to be charged as a lien on McFarland’s real estate. Rice so alleged in his petition, and McFarland in his answer denied, that Rice had any title thereto. It will be remembered that Rice claims to derive title to the Morris note and deed of trust from a transfer by Stearns as collateral security for two notes made by Stearns to Rice in September, 1877, and January, 1878. To support this claim plaintiff introduced the deposition of one Williams, who testified, in substance, that he knew of Stearns borrowing money of Rice, and that Stearns assigned the Morris note to Rice as collateral security for the payment of notes given by Stearns for such borrowed money, etc. And this was all the evidence of such alleged transfer that was offered by the plaintiff. Defendant produced no witnesses at the trial to contradict this evidence testified to by Williams, and with such a showing the question is, was the court justified in assuming the evidence of Williams as true and to so instruct the jury. Defendant’s counsel insists that the trial court cannot assume, in its instructions to the jury, the existence of controverted facts — whether controverted by the pleadings; or by the evidence. We are not prepared to indorse this extreme view in relation to facts put at issue by the pleadings, though it has the support of so able a jurist as Judge Rombauek, in a separate opinion by him in case of Mathews v. Railroad, 26 Mo. App. 89. We are of the opinion that Judge Thompson in the same case announces, the prevailing rule in this state. We hold with him (and believe ourselves supported by the uniform decisions of the supreme court) that, even *496where the petition and answer present an issue of fact, yet, “when the testimony is clear and conclusive, an instruction may assume the truth of the fact sworn to, and it will not be reversible error.” Fields v. Railroad, 80 Mo. 206; Boland v. Railroad, 36 Mo. 491; Sawyer v. Railroad, 37 Mo. 263; Caldwell v. Stephens, 57 Mo. 595; Burlington First Nat. Bank v. Hatch, 98 Mo. 378; Carroll v. Railroad, 88 Mo. 239; Slapback v. Gerkhardt, 1 Mo. App. 333; Price v. Haeberle, 25 Mo. App. 205; Clemons v. Knox, 31 Mo. App. 197.
We do not then feel warranted in condemning the foregoing instruction (directing the jury to return a verdict for plaintiff) simply because the fact assumed was controverted by the answer. But said instruction meets with our disapproval, in that it assumes to decide for the jury the existence of a substantial fact in plaintiff’s favor, when the same is controverted by evidence for the defense. Circumstances, those ‘ ‘ physical facts ’ ’ which accompany a transaction, constitute evidence by which the jury are to determine issues between litigants, and such circumstances deserve a like consideration as the sworn statements of witnesses. It may be, and often happens, too, that such circumstances — mute, but credible witnesses — satisfactorily, and even conclusively, disprove the testimony of the living witness. So, then, if there are any circumstances, or “physical facts,” which tend to dispute the sworn statement of a witness, they stand as controverting testimony, and should be weighed by the triers of the fact. About this sworn evidence of witness Williams, there stands much to contradict it. He swears, in effect, that, before Morris paid off the note to Stearns, the payee, said Stearns had transferred the same to plaintiff Rice. He says that this assignment by Stearns to Rice occurred in September, 1877 (as “he recollects”). Now, to oppose this, defendant relies, and has the right to rely, on the significant circumstance that there appears no *497indorsement on the note of Stearns, the payee, to Rice, the claimant. Prom the quite universal and usual manner of transferring notes by indorsement on the back thereof, the presumption is that here, in the absence of an indorsement, no assignment was ever made. Bowers v. Johnson, 49 N. Y. 435. Rice’s possession of the Morris note, unindorsed, does not relieve him from the presumption that the note still belonged to Stearns. Such' possession of the note, unassigned, is no evidence of ownership. Said note was payable to the order of Stearns, and, being unindorsed by him to Rice, the presumption still exists that Stearns continued owner. Cavitt v. Tharp, 30 Mo. App. 131; Bowers v. Johnson, supra. And, again, in December, 1878, Stearns, by deed of release, signed, acknowledged and recorded, acquits the McFarland land of any lien or charge on account of the note Morris had made to him (and which he then claimed to yet own). While it is true that this acknowledgment of satisfaction is not conclusive, it is yet prima facie evidence of the discharge of the incumbrance, and the burden is placed on plaintiff Rice to show that, at the date of discharge, Stearns had nothing to discharge, in so far as the note in controversy was concerned. Trenton Banking Co. v. Woodruff, 2 N. J. Ch. Rep. 118; Ferguson v. Glassford, 35 N. W. Rep. 826-7. These circumstances, together with the long delay attending the institution of this suit, the failure on Rice’s part (if holder and owner of the note) to make known any claim to this mortgage lien, permitting years after maturity to pass without naming the matter to Morris or McFarland, constitute defensive evidence well worthy the consideration of the jury trying the cause. So potent, too, is the tendency of this evidence that, had the jury found for defendant on the issue, no court would be justified in disturbing the verdict. The court in the trial of this cause clearly invaded the province of the jury. As well said by *498Norton, J., in Kelly v. Railroad, 70 Mo. 608, “The line which marks the respective duties and functions of the court and jury is certain and well defined. It may be said that it is the duty of the judge to decide whether there is any evidence, and the legal effect of it, and that it is the province of the jury to determine the sufficiency of it. In a case where there is no evidence to sustain a material allegation, there is nothing for the jury to consider, and the court may so declare. But when the facts are disputed, or the credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from the facts proved, the case, under proper instructions, should be submitted to the jury. It is for the jury, and not the court, to pass on the weight of evidence, where there is any evidence.” These words of Judge Norton may be considered to some extent modified by later and other decisions, to the effect that, “where the evidence is of that character that the trial judge would have a plain duty to perform in setting aside the verdict as unsupported by the evidence, it is his duty and his prerogative to interfere before submission to the jury, and direct a verdict for defendant,” and I would say, in a proper case, for plaintiff as well. Jackson v. Hardin, 83 Mo. 186, and cases cited.
However, as already explained, this does not belong to that character of case. With the substantial evidence. here in favor of defendant McFarland, no court would be justified in setting aside a verdict in his favor. Hence, in our opinion, the trial court erred in arbitrarily instructing against McFarland, thereby, in effect, declaring to the jury that they should believe the testimony of witness Williams to be true, although contradicted, as it was, by the patent circumstances surrounding the transaction. Bryan v. Ware, 4 Mo. 110; Vaulk v. Campbell, 8 Mo. 227; Gregory v. Chambers, 78 Mo. 298; Kenny v. Railroad, 80 Mo. 578; Carson v. Porter, 22 Mo. App. 184.
*499•III. Defendant’s counsel, in an able and exhaustive brief and argument, urge us to review our former holding in this case, which was to the effect that, while Morris, the maker of the note, may be discharged, yet, under certain circumstances, McFarland’s land maybe charged by the deed of trust. This we cannot do. The point has become res adjudicata in this case, and we decline, therefore, to reconsider the question at this time. See Belch v. Miller, 37 Mo. App. 628, and cases cited.
It follows, however, from the views hereinbefore expressed, that the judgment herein must be reversed and the cause remanded for a new trial.
All concur.