
    Davis v. Heck.
    [79 South. 59,
    Division B.]
    Tbial. Instructions.
    
    Instructions by a trial court are misleading where facts are assumed without any evidence warranting the assumption.
    Appeal from the circuit court of Bolivar county.
    Hon. W. A. Alcorn, Jr., Judge,
    Suit by’ T. J. Davis against J. C. Heclc. From a judgment for defendant, plaintiff; appeals.
    The facts are fully stated in the opinion of the court.
    
      Owen é Roberts, for appellant.
    
      A. W. Shands, for appellee.
   Cook, P. J.,

delivered the opinion of the court.

This appeal comes from the circuit court of the second district of Bolivar county. The suit originated in the court of a justice of the peace and was based on a promissory note for one hundred and fifty dollars, payable to the order of T. J. Davis and signed by J. C. Heck, the appellee, and John Jackson.

It is not quite clear what the defense was in the circuit court, unless it was payment. A careful review of the evidence fails to establish this defense. It seems that T. J. Davis was engaged in the business of selling mules, and he was also a member of the mercantile firm of Sample & Davis. The note involved here was given for the purchase price of a mule. , ' .

It seems that both promisors in the note also owed Sample & Davis for advances of merchandise made on their account, and it is claimed that they paid Sample & Davis this mercantile account and also the note in question.

It may be conceded that Sample & Davis were overpaid, but this seems not to be true. It appears that Sample & Davis were also sued by Heck for the alleged overpayment. This suit was decided against Mr. Heck and affirmed on appeal to this court on May 13, 1918 (78 So. 552).

Be that as it may, we have been unable to find anything in this record to sustain any defense to this action. The instructions given for the defendant were misleading, iu that facts were assumed without any evidence warranting the assumption.

Reversed and remanded.  