Berwin v. Gauger

Howe, J. This was a suit upon a promissory note. The defense *648 set up was fraud and want of consideration. A reconventional demand was also pleaded. There was judgment dismissing the plaintiff’s demand as in case of nonsuit, and he has appealed. We are constrained to think that the judgment was erroneous. The plaintiff’s case was fully made out by the note itself, and by his answers to interrogatories propounded by defendant and introduced by plaintiff without objection, as appears by the note of evidence. The defendant has not successfully contradicted this array of proof, nor established the affirmative allegations of his answer, the burden of proving which was upon the defense. His own testimony is loose and vague, and the other testimony on his side is insufficient to eke out his case. It is therefore ordered that the judgment appealed from be reversed and the demand of defendant dismissed, and that plaintiff Manheim Berwin recover from defendant John L. Gauger the sum of $857 20, with eight per cent, per annum interest from February 27, 1867, and costs of both courts. Rehearing refused.