Suit by the endorsee of the payee, against the maker, of a promissory note.
The complaint averred the endorsement, hut did not set out a copy of it. This was unnecessary. Treadway v. Cobb, 18 Ind. 36. The note was payable at a hank in this State. On the trial, the note was admitted in evidence, hut was objected to on account of an alleged variance. We have carefully compared the copy in the complaint with the note given in evidence. There is no variance between them. There seems to he two copies of notes in the bill of exceptions. The true note was recognized on the trial by the parties as being in evidence.
The answer of the defendant was in three paragraphs.
First. General denial;
Second. That the note was given without consideration, of which plaintiff had notice; and,
Third. Failure of consideration, of which plaintiff had notice.
Reply in denial of the second and third paragraphs.
On the trial, the court gave this instruction, which was excepted to:
“ The evidence in this case shows the plaintiff to have been a purchaser of the note in suit, in good faith, for a valuable consideration, before maturity; and there being no evidence to show that, at the time he became the owner of the same, he had any notice that the same was procured from the defendant by fraud or without considera-, tion, you will find for the plaintiff, and assess his damages at the amount due on the note,” etc.
This instruction was excepted to, and the giving of it is assigned for error. The objection urged to it is, that it *298assumes that the plaintiff had no notice as to the consideration of the note. As a general rule, all questions of fact arising upon the evidence should be left to the jury. But it is held mot to be error, where there is no evidence tending to prove the existence or non-existence of a material fact, for the court to say so to the jury. Steinmetz v. Wingate, 42 Ind. 574, and cases cited.
In this case, we have carefully read the evidence, and can say, that all the notice the plaintiff is shown to have had, as to the consideration of the note, was the simple fact that it was given for a manufactured article on which there was a patent, but what patent, or the character of it, not a word of testimony nor a particle of documentary evidence was produced on the trial. If this evidence tends to prove a want, etc., of consideration, the above instruction was wrong. If it does not, it was right. We think the instruction was right. Walker v. Woollen, 54 Ind. 164.
There is no error in the case.
The j udgment is affirmed, with costs.