
    Yates, Respondent, v. Brackenridge, Appellant.
    1. "Where there is any testimony which tends to support any of the issues in a cause, it is error to instruct the jur-y that there is no evidence before them.
    
      Appeal from St. Louis Cou/rt of Common Pleas.
    
    
      Breckenridge & Page, for appellant.
    
      Gantt, for respondent.
   Richardson, Judge,

delivered the opinion of the court.

Wo think that the evidence offered by the defendant tended to show the truth of the answer as to a partial failure, and the circumstances that led to the execution of the note; and the instruction was therefore erroneous that declared there was no evidence on the subject. (Rippey v. Friede, 26 Mo. 523.) A party resisting the payment of a note on the ground that it was obtained by fraud or without consideration is not bound to show what occurred at the time of its execution by a witness who was present, but in the absence of more direct proof may establish his defence by circumstances.

The other judges concurring, the judgment will be reversed and the cause remanded.  