Plaintiff’s action is based on a promissory note for $1000. The judgment in the trial court was for the defendant.
The note was given for purchase price of one thousand shares of stock which defendant claims were never delivered and that therefore there was no consideration. The present note is a renewal of another of the same tenor unless the difference is found in the notation found on it in these words, “F’or 1000 shares of the capital stock Las Yegas Irrigated Fruit Land Company par value $1 per share — stock not yet delivered.” It is claimed by plaintiff that the notation on the original note was like this one, except that the closing words were “Stock held as collateral for the payment of this note.”
If the notation on the original note was as claimed by plaintiff then it is conceded the stock was delivered. The dispute was appropriately submitted to the jury and we must accept the verdict on that head as conclusive against the plaintiff.
We pass therefore to the legal questions raised. The answer set up the defense that the note was given for stock in the Las Yegas Irrigated Fruit Land Company and that such stock had never been delivered *337to defendant and that the note was “wholly without consideration,” and that plaintiff (and the bank for which he sued) knew it when they received the note. On the ground that the answer set up a total failure of consideration, plaintiff insists that a partial failure cannot be shown and that if it appears that there is any consideration, however slight, a judgment for plaintiff for the whole amount of the note must be rendered. But in National Tube Co. v. Ice Machine Co., 201 Mo. 30, 59, and Gamache v. Gum, 23 Mo. 38, the question was directly decided against plaintiff’s view; the holding in those cases being that under a plea of total failure of consideration evidence of a partial failure may be heard.
Plaintiff makes several objections to the action of the court at the trial and advances several theories some of which are difficult to understand. "We will, therefore, state our views trusting in this way to dispose of the points made. The case is simple and required only the application of the plainest rules in order to a proper disposition. The defense to the note was that it was given for stock in a corporation which had .never been delivered and it was therefore without consideration. The different ideas presented by plaintiff as’to what the answer should and should not have alleged are not applicable to the facts of the ease.
But plaintiff further insists that if the stock was placed in defendant’s name on the books of the corporation that was sufficient without delivering .it to him and his instruction to that effect was refused. He cites White v. Salisbury, 33 Mo. 150, which supports him. But that case was shown to be not in accord with the established rule, in Trust & Sav. Co. v. Home Lumber Co., 118 Mo. 447, 458; and it was said to be dictum by the Supreme Court (74 Mo. 77) in approving of the opinion of the St. Louis Court of Appeals *338in Merchants Bank v. Richards, 6 Mo. App. 1. c. 463. By these and other cases it is shown that a transfer and delivery of the certificate of stock is the ordinary mode of conveyance of snch choses.
We therefore conclude that defendant was entitled to a delivery of stock certificates.
Plaintiff finally insists that the notation in the note that it was given for stock not. yet delivered, was of no effect and should not have aided defendant in his defense. He bases this claim on the section 9974, Revised Statutes 1909, reading as follows: “An unqualified order or promise to pay is unconditional within tbe meaning of this chapter though coupled with: (1) An indication of a particular fund out of which reimbursements are to be made, or a particular account to be debited with the amount; or (2) a statement of the transaction which gives rise to the instrument. But an order or a promise to pay out of a particular fund is not unconditional. ’ ’
We need not consider such question from the fact that the theory of each party at the trial was that 'such notation was vital if it read as pleaded by defendant, but if it read as contended by plaintiff, that the stock was held as collateral for the note, then the defense of no delivery was not made out. Each party asked instructions on these theories, and it is too late to change on appeal. [Riggs v. Met. St. Ry. Co., 216 Mo. 304; Fulwidder v. Power Co., 216 Mo. 582.] It is true that plaintiff asked a peremptory instruction, but the request for that instruction as shown by the brief, was not on the ground of the noneffect of the notation, but on the theory of pleading a failure of consideration which we have already discussed.
We are not impressed with what plaintiff has said about the answer in connection with a tender and the law applicable to cases of that nature. On the whole record it is manifest the judgment must be affirmed.
All concur.