OPINION
By THE COURT:Appeal on question of law.
Plaintiff took judgment against the defendant in the sum of $7,022.59 on a warrant of attorney on a note signed by the defendant. Thereafter, upon motion of defendant and a finding that she had a valid defense to the action on the note, the judgment was opened up and suspended. Thereafter, the cause came on for trial to a jury which disagreed and was discharged by the trial court.
The issues presented to the jury were made up of the original petition of plaintiff in short form based upon the note. The answer consisted of two defenses, the first of which is, in substance, that the defendant signed the note at the request of her husband, C. M. St. John, who, at the time of filing the answer, was deceased; that it was signed upon misrepresentations made with intent to defraud her and upon which she relied. Her second defense was that if indebted to the plaintiff in any amount she particularly denies indebtedness on the note and says that she received no money or anything of value from the plaintiff at the time the note was filed or at any other time; that it was given without any consideration moving from plaintiff to defendant and without any detriment or loss to the plaintiff and that she did not know that she was signing a note payable to the plaintiff.
The reply was in the nature of a general denial of the averments of the answer.
On the trial, at the conclusion of the defendant’s case, the plaintiff moved to withdraw the first defense from the jury, which was sustained and further moved to withdraw the second defense of want of consideration, which motion was overruled. Before argument the plaintiff requested the court to give the following special charge to the jury;
“I charge you, as a matter of law, that if you find that Harriett St. John signed the note at the request of her husband, C. M. St. John, and that there existed an obligation from C. M. St. John to John A. St. John, and said note was given for said obligation, the same constitutes a valid consideration for said note, and your finding should be for the plaintiff.”
This request was refused and exceptions were noted.
On the 25th of July, 1936 the plaintiff moved for judgment for the reason that inasmuch as the court had directed a verdict for the plaintiff upon the first defense of defendant’s answer there was not sufficient evidence to go to the jury on the defense asserted in the second defense. This motion was overruled, to which exceptions were noted and from this action of the trial this appeal is prosecuted.
After the general charge counsel for plaintiff requested the following instruction, which was refused:
“If the jury finds the defendant signed as an accommodation party from the evidence the law applicable thereto is §8134 GC. ‘An accommodation parly is one who signed the instrument as maker, drawer, acceptor or indorser, without receiving value therefor, and for the purpose of lending his name to some other person. Such a person is liable on the instrument to a holder for value, notwithstanding the holder at the time of taking it knew him to be only an accommodation party’.”
*292*291It will be observed that there is no general denial as such of the petition, but the *292second defense, wherein it is asserted: “She particularly denies indebtedness on the note * must be accepted in its broadest implication, which would be tan-tantamount to a denial of consideration and put upon the plaintiff the burden of establishing it upon any theory upon which he was entitled to recover.
We are not reviewing the refusal to give any special instructions, nor the general charge. The question presented is in the most favorable intendment of the evidence for the defendant: Does she make an issue of fact for the jury on the pleadings?
As a prerequisite to the liability of the defendant as an accommodation maker, the plaintiff must have been a holder for a value. The note itself is prima facie evidence of a valuable consideration and that defendant signed it for value. But upon consideration of the whole record there is an issue whether or not there was a pre-existing debt owing from Morgan St. John to the plaintiff. It is incumbent upon the plaintiff to prove a pre-existing indebtedness against Morgan St. John to support the note given by the defendant if she was an accommodation maker.
In the view that we have taken of this record it is not necessary to consider and discuss the many cases cited by counsel respecting the application of certain sections of the negotiable instruments law to the facts. §8134 GC is unambiguous.
We find that the court did not err in overruling the motion of the plaintiff for judgment. Inasmuch as this case has twice been to this court on review and in probability will be tried again, we express the opinion that the special instruction requested by plaintiff before argument and and her charge requested to be given at the conclusion of the general charge properly state the law of this case.
CRAIG, PJ, BARNES and HORNBECK, JJ, concur.