Bills and Notes. Evidence, Presumptions and burden of proof. In an action against the indorser of a promissory note, although the production of a note in the ordinary form is prima facie evidence of a consideration, the burden of proof always is on the plaintiff to show that there was a consideration if this is denied by the defendant.
KNOWLTON, C.J.
The question at the trial was whether, as between the plaintiffs and the defendant Hellen, there was a consideration for Hellen's signature upon the note. The production of the note made a prima facie case on this point, in favor of the plaintiffs. The defendant sought to meet it by showing that the presumption which ordinarily would arise from the form of the note was not well founded, and that there was no consideration for his signing, inasmuch as he affixed his signature merely for the accommodation of the plaintiffs. On the question whether there was a consideration for the note, the burden of proof was on the plaintiffs throughout the trial. The evidence offered by the defendant was on that issue, and was intended to meet and answer the contentions of the plaintiffs. If, on the whole evidence, the matter in dispute was left in an even balance, the plaintiffs would fail.
This is not like a case where the defendant seeks to avoid the effect of prima facie evidence by the proof of an independent fact outside of the issue, whereby he is relieved from liability. In such a case the defendant has the burden of proving the fact, and if he fails, the original prima facie case prevails.
The present case cannot be distinguished in principle from Perley v. Perley, 144 Mass. 104. See Delano v. Bartlett, 6 Cush. 364; Broult v. Hanson, 158 Mass. 17; Temple v. Phelps, 193 Mass. 297.
The jury should have been instructed that, on the whole evidence, the burden was on the plaintiffs to prove that the defendant Hellen's indorsement was for a valuable consideration.
Exceptions sustained.