
    Webster College, Appellant, v. J. D. Tyler, Respondent.
    
      Practice — Instructions.—Judgment reversed, there being no evidence to warrant the instruction given.
    
      Appeal from St. Louis Law Commissioner’s Court.
    
    
      E. Casselberry, for appellant.
    
      J. R. Lackland, for respondent.
   Bates, Judge,

delivered the opinion of the court.

This was a suit begun before a justice of the peace upon a note made-by the defendant to A. Bullard, president of the board of trustees of Webster College, for one hundred dollars, dated December 1, 1854, and payable five years after date. The defendant gave in evidence a certificate with the' same date, signed by A. Bullard, president of the board of trustees of Webster College ; that’the defendant having subscribed |500 for the purpose of obtaining a scholarship in Webster College, and having executed his note for the same, he in payment in full of the aforesaid sum should be entitled to a perpetual scholarship, &c.; and also gave in evidence a resolution of the board of trustees of the college, as follows: “Resolved, that for the next five years any one who has paid one hundred dollars to Webster College and given his or her note or notes for $400 more, bearing six per cent, interest per annum for not a longer period than one, two three and four years, in equal instalments, shall at once on the opening of the institution be entitled to all the advantages of a scholarship, unless he or she shall fail to pay said notes, or either of them, with interest on maturity.”

The defendant also gave in evidence that many notes were given to the college in order to get it established and for scholarship, and that many of them had not been paid; that professors and teachers were employed for a time, but that now none were employed and no school kept up there.

For the defendant the court instructed the jury as follows: “ If the jury find that the consideration for .which the note sued on was given has wholly failed, they will find for the defendant.” There was verdict and judgment for the defendant, and the plaintiff has brought the case to this court by appeal. The instruction given was manifestly wrong. There was absolutely no evidence of what was the consideration of the note.

Judgment reversed and cause remanded.

Judges Bay and Dryden concur.  