— Plaintiff sued defendant to recover the amount of a promissory note which he claimed was indorsed to his intestate for value before maturity in the usual course of business without notice of any infirmity. Defendant set up that the note was without consideration and had its inception in the fraud and deceit of the payee. A judgment was given for plaintiff and defendant appeals.
*203Plaintiff, to sustain Ms cause, offered, in the first instance, the note, and in addition, evidence tending to prove that the deceased purchased the note Iona ficle for value before maturity in the usual course of such transactions. Defendant thereupon offered evidence tending to show that the plaintiff’s intestate did not so purchase the note, but that he took it aftér due, or for collection, or as security for, or in payment of, prior indebtedness. Also, that he had knowledge of the lack of consideration.
An instruction was then given for plaintiff informing the jury that the law presumed in favor of the holder of negotiable paper that he purchased it for value, in the usual course, before due and was the innocent holder thereof, and that it was not subject to the defense of fraudulent consideration until these presumptions were overcome by proof, the burden resting upon the defendant in this respect. The presumptions in favor of the indorsee of negotiable paper are as therein set out. On trial this mere presumption should be, and is, met by proof, in defendant’s behalf that the note had a fraudulent inception between the original parties. The case then stands, practically, as if there had been no presumption and it devolves upon plaintiff to show that he purchased the note for value before due, in • the usual course of trade. It- thereupon devolves upon the defendant to show that plaintiff had notice of the fraud.
So while it is true, as stated in this instruction, that the presumption in favor of plaintiff must be overcome by proof on the part of defendant, yet it would have been less confusing and would have been clearer in all respects if the instruction had stated in what such proof might consist. This, for instance, if after the words “overcome by proof,” there had been added the words “of the fraudulent inception of the *204note,” or, “fraudulent consideration of the note.” But our opinion is that under the issues presented and the order of proof as had upon the trial, there was no harmful error in this instruction.
Plaintiff not only produced the note in evidence but he offered affirmative testimony tending to show, in the first instance, the matters which the law would have presumed in his intestate’s favor without proof. After such affirmative testimony tending to show that the intestate was a Iona fide purchaser for value before due, in the usual course of such transactions, he was entitled (if believed) to recover, unless defendant could show that the intestate had notice, of the fraudulent origin of the note. And this latter question was the real issue in the cause; and upon it the instructions were sufficiently clear and explicit. As to authority pertaining to this - position see: Hamilton v. Marks, 63 Mo. 178; First Nat. Bank v. Stanley, 46 Mo. App. 440; Johnson v. McMurray, 72 Mo. 278; Henry v. Sneed, 99 Mo. 422.
The defendant offered, and the court refused to permit him, to testify that the deceased, the indorsee, had stated to him that he did not acquire the note until after maturity. This was offered on the ground that the note — the contract — was originally with the payee, a person living and competent to testify at the trial. Th e testimony was properly excluded. Chapman v. Dougherty, 87 Mo. 617; Scott v. Riley, 49 Mo. App. 251; O’Bryan v. Allen, 108 Mo. 227. The statute (Revised Statutes, 1889, section 8918) is, “that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify.” The fact alleged that the deceased purchased the note in regular course of business, for value before *205due, was the cause of action, or went' materially to make up the cause of action. One of the parties to this cause of action on trial and at issue was dead. This disabled the living party, otherwise there, would have been that unfair advantage in his favor . which the statute was designed to prevent.
The cause'was submitted to the jury at abouteleven o’clock p. m. on the ninth of September, at which time the court took a recess until Monday morning, the twelfth. Before announcing the recess the court discharged the jury until the next morning, the tenth, with directions that if they found a verdict by noon of that day to seal and deliver it to the clerk, when they might separate until Monday morning. The jury arrived at a verdict by noon of the tenth and did seal and deliver it to the clerk and did separate and report to the court in a body Monday morning and did then deliver and announce their verdict. We regard this entire proceeding as within the discretion of the trial court, and can see nothing in it, from the record, whereby any injury happened, or where any improper result followed from it, or where any improper conduct on the part of the jury was thereby occasioned.
The third instruction asked by defendant and refused was not necessary. All in it of any moment to the defendant was fully covered by the concessions contained in the instructions given for plaintiff.
We can see no objection to the action of the court in refusing to strike out a portion of the plaintiff’s testimony as to the note being bought by deceased. Nor as to its direction in regard to the opening and closing of the case.
A complete examination of the points made in behalf of appellant has not satisfied us that the judgment should be reversed. It is accordingly affirmed.
All concur.