Hoyle v. Shirley

49 So. 177, 94 Miss. 466

• Court: Mississippi Supreme Court
• Decided: March 15, 1909
• Status: Published

Opinion

Mayes, J.,

delivered the opinion of the court.

It was perfectly competent for Hoyle to show that the consideration for the note given by him to Ladnier and by Ladnier assigned to plaintiff had failed. This Hoyle undertook to do, and his counsel offered to show that the consideration for which he executed the notes had failed; but we think, under the court's ruling, Hoyle was shut out from making this defense. It is true that his counsel asked, “What was the contract between you and Ladnier at the time you executed the note sued on?” Whereupon the court directed counsel to ask, not what the contract was, but “What was the consideration for which the note was given ?” Counsel for Hoyle then stated that he proposed to show that the consideration failed, in that Ladnier had promised to protect the business which Hoyle had bought from him, and which constituted the consideration, by paying off all judg- and debts for a specified time, and Ladnier failed to do this, and hence the consideration for the note failed. The plaintiff objected to this, and the court stated that he did -not think the testimony offered by counsel was competent.

On reviewing the record, we think that the appellant was unduly restricted by the court in his effort to show a failure of consideration, and for this reason the judgment is reversed and cause remanded.