Respondent brought this action against appellant to recover upon two promissory notes, set forth in the complaint under two causes of action. After trial of the cause to court and jury, verdict was returned for respondent for the full amount claimed, and this appeal is prosecuted from the judgment entered on the verdict. There is no controversy here regarding the note set forth in the second cause of action. As to the proceedings involving recovery on the note made the basis of recovery under respondent's first cause of action, appellant contends (1) that the court erred in charging the jury as to matters of law, and particularly in the giving of instructions Nos. 3 and 8; and (2) that the evidence is insufficient to sustain the verdict.
By the instructions complained of the jury were advised, in effect, that appellant in his answer had asserted that there had been a failure of consideration for the giving of the note in question, and that in order for him to prevail thereunder it was necessary that such defense be established by a fair preponderance of the evidence.
Pertinent to the inquiry as to the correctness of these instructions are C. S., secs. 5891 and 5895, taken from the Uniform Negotiable Instruments Act, being secs. 24 and 28 thereof:
Section 5891. "Every negotiable instrument is deemedprima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value."
Section 5895. "Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise."
In our opinion this question was adequately discussed and the proper conclusion reached by the supreme court of North Dakota in First State Bank v. Radke, 51 N.D. 246, 35 A.L.R. 1355,199 N.W. 930, wherein it was said, after *Page 664 considering a similar situation under identical statutory provisions:
"The burden of proving the affirmative defense of want of failure of consideration under the Negotiable Instruments Law is upon the defendant. The law implies that every promissory note which has been executed is founded upon an adequate and valuable consideration; if it be sought by the maker to negative this presumption of the law by affirmative pleading and proof, the burden is upon him to the end to prove by the greater weight of evidence, upon that issue, that the instrument was in fact given without consideration."
See, also, for further review of the authorities, annotation in 35 A.L.R., beginning at p. 1370, and 5 Uniform Laws Annotated, p. 152, d.
The giving of the instructions complained of does not warrant a reversal of the judgment.
Although the precise point here presented was not involved inCasey v. Empey, 34 Idaho 244, 200 P. 122, that opinion purports to announce the rule to the contrary, and to the extent that it is inconsistent with our views herein it must be held to be an inaccurate statement of the law.
Coming now to the second assignment of error, there is a clear conflict in the evidence which, if uncontradicted, is sufficient to support the verdict. "And where there is substantial evidence to support a verdict the same may not be set aside (C. S., sec. 7170), though the evidence may be conflicting." (Webster v. McCullough, 45 Idaho 604,264 P. 384.)
The judgment is affirmed, with costs to respondent.
Givens and Varian, JJ., and Brinck, D.J., concur.