In a petition for rehearing filed by appellant, his counsel presents very clearly and forcefully the view taken by some courts that by the provisions of the Uniform Negotiable Instruments Act quoted in the original opinion herein, it was intended that the burden upon the maker of a note, with reference to the defense of want of consideration, should be merely the burden of producing evidence tending to show lack of consideration, as distinguished from the ultimate burden of convincing the tribunal upon the whole evidence, which, according to this view, remains at all times with the holder. This view seems to us to place an undue strain upon the plain language of C. S., sec. 5895. When it is said that either absence or failure of consideration is a matter of defense, it requires a considerable effort to say that such defense is not an affirmative defense which must be established by a preponderance of the evidence. A case often cited in favor of this view, and relied upon by appellant here, is Ginn v. Dolan,81 Ohio St. 121, 135 Am. St. 761, 18 Ann. Cas. 204, 90 N.E. 141, decided after the enactment in Ohio of the *Page 666 Uniform Act, but without specific reference thereto. That decision holds, in common with the decisions of some other states prior to the enactment of the Uniform Act, that the ultimate burden of proof as to want of consideration is upon the holder of the note, but as to failure of consideration is upon the maker. Of course, such a distinction is impossible of comprehension if based upon C. S., sec. 5895, for both absence and failure of consideration are by that section placed in the same category, and the court in that case could not have had the statute in mind. It is superfluous here to cite or discuss the authorities. They are grouped in a very exhaustive note in 35 A.L.R. 1370 et seq. In First State Bank v. Radke, cited in the opinion of Chief Justice Budge herein, Mr. Justice Johnson analyzes and criticises the cases supporting appellant's contention here. We think the argument and the conclusions of Mr. Justice Johnson sound.
We also have in this state the general statutes identical with those considered in First State Bank v. Radke, as follows:
C. S., sec. 5663: "A written instrument is presumptive evidence of a consideration."
C. S., sec. 5664: "The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it."
The language of C. S., sec. 5664, is so plain that it seems but toying with words to hold that in spite of that statute the ultimate burden of convincing the tribunal as to a consideration remains with the party who is not seeking to avoid the instrument. Decisions from states having these and similar statutes are grouped in the note in 35 A.L.R. at pages 1405-1409. In many of those states, as in First StateBank v. Radke, it is expressly held that by virtue of such statute the maker of a note has the burden of proving by a preponderance of the evidence that the note was without consideration (First Presbyterian Church v. Dennis,178 Iowa, 1352, 161 N.W. 183, L.R.A. 1917C, 1005; Ford v. Drake,46 Mont. 314, 127 P. 1019; Thom v. Stewart, 162 Cal. 413,122 P. 1069; Ball v. White, 50 Okl. 429, *Page 667 150 P. 901, rule applied to contract not negotiable), and none of the cases there cited, or that we have found, construing similar statutes, hold to the contrary.
Appellant relies upon the decisions of this court inWinter v. Nobs, 19 Idaho 18, Ann. Cas. 1912C, 302, 112 P. 525, and Shellenberger v. Nourse, 20 Idaho 323, 118 P. 508. The question involved in both of these cases was as to the burden of proof with reference to whether an indorsee is a holder in due course, and they are not authority upon the question here raised, but construe a different section of the Uniform Act (C. S., sec. 5926). Casey v. Empey, 34 Idaho 244, 200 P. 122, announces the rule contended for by appellant. That decision cites Brannan's Negotiable Instruments Law, 3d ed., sec. 24, p. 95, and cases there cited. These are decisions supporting that rule, in the main at common law. The author's own opinion, at p. 97, is to the contrary. Professor Williston, in common with Professor Brannan, considers that the Uniform Act settled the law and placed the ultimate anus probandi upon the maker of the note. (Williston on Contracts, sec. 108, n. 17.)
Were it not for the express provisions of the statutes, we would be inclined, upon the principle of stare decisis, to follow the rule stated in Casey v. Empey; but it is clear that none of the statutes here involved were called to the attention of the court in that case, and that it was decided, as so many cases involving negotiable instruments in other jurisdictions have apparently been decided, without reference to the provisions of the statutes. No vested property rights can have accrued in reliance upon Casey v. Empey, and we consider it mandatory that the positive statutes upon the subject be given effect, rather than that an incorrect ruling made through oversight with respect to the statutes, be perpetuated.
The petition for rehearing is denied.
Budge, C.J., and Givens and Varian, JJ., concur. *Page 668