
    Gardner Lumber Company, Plaintiff in Error, v. Bank of Commerce, Defendant in Error.
    
    Opinion Filed February 2, 1917.
    Petition for Rehearing Denied March 12, 1917.
    On an issue of failure of consideration in an action on promissory notes, the plaintiff having the general affirmative is entitled to open and conclude; and where there is some substantial evidence tending to prove the issue of failure of consideration, a verdict for the plaintiff should not be directed by the court.
    Writ of Error to Circuit Court for Hillsborough County; F. M. Robles, Judge.
    Judgment reversed.
    
      Henry N. Sandler and T. Paine Kelly, for Plaintiff in Error;
    
      Shackleford & Shackleford, for Defendant in Error.
   Per Curiam.

The Bank of Commerce' brought an action against the Gardner Lumber Company, a copartnership on two 'promissory notes executed by the latter payable to the bank. Issue was joined on a plea of failure of consideration. At the trial the court directed a verdict for the plaintiff on which judgment was rendered and the defendants took writ of error.

On the issue the plaintiff having- the general affirmative was entitled to open and conclude the presentation of the cause. As there was some substantial evidence tending to prove the issue of failure of consideration, the cause should have been submitted to the jury for their consideration; therefore it was error to direct a verdict for the plaintiff, for which error the judgment is reversed.

Browne, C. J., and Taylor, Whitfield and Ellis, JJ-, concur.

Shackleford; J., took no part.  