
    Davis v. Scarbrough.
    [66 South. 975.]
    Bills and Notes. Consideration. Peremptory instructions.
    
    Where, in a suit on a promissory note, the evidence of the defendant shows a failure of consideration, a peremptory instruction for plaintiff should not he given.
    Appeal from the circuit court of Winston county.
    Hon. Gf. A. McLean, Judge.
    Suit by W. T. Scarbrough against Gr. W. Davis. From a judgment foi plaintiff, defendant appeals.
    This is an appeal from a judgment of the lower court directing a verdict for appellee, who was plaintiff below
    The suit is based on a note, which is as follows:
    “$312.
    “By the first day of November, 1909, we promise to-pay to Will Scarbrough the sum of three hundred and twelve dollars, with ten per cent, interest from 4th day of April, 1908. Witness our hands, this the 21st day of December,- 1908.
    “ J. D. Frazier.
    “G. W. Davis.”
    Frazier, the codefendant, being insolvent, did not defend ; and a judgment by default was_ taken against him.. The appellant filed a notice under the general issue that at the trial he would introduce evidence to show that the-, note was procured by fraud and misrepresentation, and was without any consideration whatever. Appellee filed a counter notice denying the charge of fraud and misrepresentation, and alleging that the consideration of •the note was an agreement that appellee should refrain from bidding on a certain piece of land to be sold at a foreclosure sale, which appellee alleges he carried out,, and permitted appellant and Frazier to bny at the foreclosure at a very low figure.
    It seems that there were three deeds of trust upon a certain tract of land; the first being held by the the C. C. Kelly Banking Company, the second — amounting to three hundred and twelve dollars — by appellee, and the third by Davis and Frazier. Default having been made in the payment of the first deed of trust, the property was advertised for sale and sold. Davis and Frazier became the purchasers. After the sale they gave their note for three hundred and twelve dollars to Scarbrough. The record discloses the fact that the second deed of trust shows that it was transferred by Scarbrough to' Davis and Frazier by marginal entry on the date of the: foreclosure sale.
    Appellee, plaintiff 'below, introduced the note andi rested. Appellant introduced evidence, as heretofore;, set out, in support of his contention of failure of consideration. At the close of defendant’s testimony, the court gave a peremptory instruction for the plaintiff for the full amount of the note and interest; and the defendant appeals.
    
      Flowers, Alexander & Brown and E. E. Rodgers, for appellant.
    
      L. M. Adams, for appellee.
   Smith, C. J.,

delivered the opinion of the court.

If the evidence introduced in behalf of the defendants in the court below is true, the «note sued on is not supported by a consideration; and this is true, whether it was obtained from them by fraud or not. The peremptory instruction therefore should not have been; given.

Reversed and remanded  