ery on the note, that the property in fact was not worth one-half, or one-quarter, or even one-tenth of the amount at which he purchased it." And again in Earl v. Peck, 64 N. Y. 596: "Mere inadequacy of consideration, except as a circumstance bearing upon the question of fraud or undue influence, is not defense to a note. It is not necessary that the consideration of a note shall be equal in pecuniary value to the obligation incurred. **A note for $1,000 given for a horse confessedly worth but $100 cannot be successfully defended in whole or in part on the ground of a want or failure of consideration.” "The value of most considerations, as well as of most promises, is a thing which the law cannot measure; it is not merely a matter of fact but a matter of opinion. If, therefore, the promisor thinks the consideration is equal to the promise in value (i. e., if he is willing to give the promise for the sake of getting the consideration), the consideration will be equal to the promise in value for all the purposes of the contract. From this it is but an easy step to the conclusion that whatever a promisor chooses to accept as the consideration of his promise the law will regard as equal to the promise in value, provided the law can see it has any value." Langdell's Summary of the Law of Contracts, 55. tion, and particularly a partial failure, taken alone, constitutes a defective title within the meaning of this act. Section 9999 provides that absence or failure of consideration is a matter of defense as against a person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount, or otherwise. The importance of this is that, if such failure or partial failure of consideration be held to constitute a defective title, then under section 10029, upon showing of such failure or partial failure of consideration, the burden rests on the holder to prove that he is the holder in due course, while, if such failure or partial failure of consideration does not constitute a defective title, the common-law rule would prevail and the burden of proof be different. Johnson v. McMurry, 72 Mo. 278; Bank v. Crow, 60 N. Y. 85. In Cole Banking Co. v. Sinclair, 34 Utah, 454, 98 Pac. 411, 131 Am. St. Rep. 885, this question was considered, and it was held that a partial failure of consideration as between the parties to a negotiable note was not a defect in title so as to require an indorsee suing thereon to show himself a holder in due course; the burden of showing want of consideration and notice thereof by the indorsee being upon the maker. This was That there was an actual consideration in under a Negotiable Instruments Law similar the present case is beyond question, and that to the Missouri law. The court states the the defendants, eliminating questions of law as follows: "The defense pleaded was fraudulent representation, got all they con- not illegal but mere partial failure of contracted for is equally certain. In 6 Am. & sideration. Failure or want of consideration Eng. Ency. of Law (2d Ed.) 780, it is stated: does not constitute a defective title within "That the rule is almost elementary that, the meaning of the foregoing provisions. 1 when the promisor gets all he contracts for, Daniels, Neg. Inst. §§ 814, 817. In the treahe cannot be heard to complain that the con- tise of Eaton & Gilbert on Commercial Paper sideration was not valuable." In 1 Benja- and the Negotiable Instruments Law, at secmin on Sales (6th Ed.) p. 542, § 620, the rule tion 79, in discussing the statutory provision is stated as follows: "But there is not a corresponding to section 1611 of our statute, failure of consideration when the buyer has it is said by the authors: 'In the absence of that which he really intended to buy, al- proof of fraud or misappropriation the prethough the thing bought shall turn out sumption is that the indorsee of a negotiable worthless." See, also, 2 Randolph on Com- bill or note is a bona fide holder for value, mercial Paper, p. 138, § 543; Welsh v. Carter, and this presumption is not repelled merely 1 Wend. 185, 19 Am. Dec. 473; 9 N. Y. C. L. by proof that the bill or note, as between (L. Ed.) 881. Under these authorities, we are the immediate parties, was without considof the opinion that there was not in this case eration, and was made, indorsed, or acceptany issue of failure of consideration to be ed by one for the sole accommodation of the submitted to the jury, independent of fraud-other. When no other proof is given, the ulent representation. holder is not bound to prove a valuable con The Negotiable Instruments Act, in the sec-sideration. * * * It will be noticed that tions cited above, fixes the burden of proof the statute provides that proof of a defective where defective title is shown and defines a title shifts the burden of proof upon the defective title as being where one obtains the holder. A title is defective where the instruinstrument or any signature thereto by ment is obtained for an illegal consideration. fraud, duress, or force and fear, or other un- It follows, therefore, that if the consideralawful means, or for an illegal consideration, tion be shown to be illegal, as for a gambling or when he negotiates it in breach of faith, debt, an unlawful sale of commodities, or as or under such circumstances as amount to a being tainted with usury, the burden of proof fraud. While, in view of the fact that the will then rest upon the plaintiff to show that present judgment must be reversed and the he was a holder in due course; but proof of case remanded for a new trial, it is perhaps a want or failure of consideration does not not necessary to decide the question, it is at in most jurisdictions operate to shift the burleast doubtful whether failure of considera- den of proof to the plaintiff.' Cases are cited We too far by way of argument in stating the by the authors to the effect that the indorsee, | Ann. Cas. 665. In our opinion the decision in an action by him against the maker, can- in the Jobes Case, supra, is correct. not be called on to prove consideration until believe that the court in that opinion went the defendant has shown that the note was obtained or put in circulation by fraud or undue means, and that proof of want or failure of consideration between a maker and a payee of a promissory note does not change the presumption that one to whom the latter | McKnight v. Parsons, 136 Iowa, 390, 113 N. has indorsed and delivered the note is a bona fide holder for value, but the burden of proof is upon the maker." W. 858, 22 L. R. A. [N. S.] 718, 125 Am. St. Rep. 265, 15 Ann. Cas. 665) were cases not only of failure of consideration but, more To the same effect is Ogden, Negotiable than that, were cases where the notes had Instruments Law, § 319, p. 251, viz.: "Where it is a question of a personal defense, there are two classes of cases: (1) Where the defense shows lack of consideration, or release, or payment of a bill or note. (2) Where the defense shows fraud, duress, or illegality in the inception of the instrument. In the first class it is not so much the question of wrongdoing as merely a question of lack or failure of consideration. The first thing to be proved by the defendant is that the plaintiff had notice of the fact that there was a want of consideration or failure of consideration. He does not prove that there was a failure of consideration but notice, and after that he proves the facts of want or failure of consideration. In the other cases (that is, those of fraud or illegality) the defendant does not prove notice but proves the fraud or illegality itself. And, when the fraud or illegality is proved, the presumption of notice arises without any proof of notice, and the burden of proof is on the plaintiff to prove he did not have notice." This is not at all in conflict with the point really decided in Jobes v. Wilson, decided by this court and reported in 140 Mo. App. 281, 124 S. W. 548. In that case it is apparent that the act of plaintiff's agent, who took the notes with the distinct agreement that certain credits were to be indorsed thereon, but who failed to have these credits indorsed and negotiated the notes without such credits, was at least a breach of faith, and the negotiation under such circumstances amounted to a fraud. This, as we understand it, is all that is decided in the Jobes Case. In fact, the court uses this language: "If the statements of defendants as to what was to be done with the notes are to be be lieved, then it was an act of bad faith, amounting to a fraud, on these defendants, as the term is defined in section 55, to negotiate these notes without placing the credits upon them." Similar transactions have been held to amount to a breach of faith or a fraud in the following cases: Sutherland v. Mead, 80 App. Div. 103, 80 N. Y. Supp. 504; Kennedy v. Spilka, 72 Misc. Rep. 89, 129 N. Y. Supp. 390; De Jonge & Co. v. Woodport, 77 N. J. Law, 233, 72 Atl. 439; Hodge v. Smith, 130 Wis. 326, 110 N. W. 192; McKnight v. Parsons, 136 Iowa, 390, 113 N. W. 858, 22 L. R. A. (N. S.) 718, 125 Am. St. Rep. 265, 15 been negotiated in breach of faith and under such circumstances as to amount to fraud, thus making a defective title within the statutory definition thereof. What we mean to hold is that the mere want or failure of consideration, not coupled with a negotiation in breach of faith or under such circumstances as to amount to a fraud, does not constitute a defective title under the statute and therefore does not put in force the rule as to burden of proof declared in section 10029, supra. If this section applies to and fixes the burden of proof in all cases of defense, good as against one not a holder in due course, but precluded as against a holder in due course, then the first clause of this section, providing that "every holder is deemed prima facie to be a holder in due course," becomes an idle jumble of words. It would then mean that every holder is prima facie so deemed unless some defense is shown, and then he must prove himself a holder in due course. Unless a defense is shown, the question whether plaintiff is or is not a holder in due course is of no importance, and therefore this clause of the above section would have no legal effect. But, if the construction we have given above be applied to this section, every part of it has a real meaning and effect. The holder is deemed prima facie one in due course, and this continues and applies in all cases but the one exception made by the statute of a defective title, as defined in section 10025. The Negotiable Instruments Law, as adopted in this state, was not a new or hastily drawn statute. It had already been enacted by a number of states and had been carefully considered and fully criticised by the bar generally. The subject of want and failure of consideration was in the minds of the authors and was treated in section 9999. It cannot be doubted that, when section 10025 was drawn defining a defective title, these questions pertaining to consideration were duly considered. If it had been the intention to make title defective where there was total or partial want or failure of consideration, this would have been stated with the same clearness of expression that appears throughout the act. The framers of the law knew the various decisions as to the burden of proof and the different rules where defense was fraud or illegality and where it was such want or failure of consideration. So when it is provided in section 10029 that, where defective title is shown, the burden is on the holder to show that he or some one under whom he claims acquired title as holder in due course, it seems certain that there was meant only a defective title, as defined in the act, and that the statutory rule of burden of proof applies in no other instances. This court has followed the dictum of Jobes v. Wilson, supra, in several cases. In Bank v. Hanks, 142 Mo. App. 110, 125 S. W. 221, it again included want of consideration with fraud as being within the meaning of section 10029, supra. However, in this case the defense was fraud and the instruction under discussion when this expression was used was based on fraud alone. Hence this coupling of want of consideration with fraud in stating the rule was unnecessary to the decision of the point involved. But in Johnson County Savings Bank v. Mills, 143 Mo. App. 265, 127 S. W. 425, and Birch Tree State Bank v. Dowler, 163 Mo. App. 65, 145 S. W. 843, it was decided that, where failure of consideration is shown, the burden is cast upon the holder under section 10029, supra. To this extent we are of the opinion these decisions are erroneous for the reasons above stated, and we shall therefore decline to follow them. ed in conjunction with the said Hart and others in inducing the defendants to execute the note sued on and assisted in making said deal, then he would not be entitled to recover in this case and your verdict should be for the defendants." (f) "The court instructs the jury that if you believe from the evidence in this case that the consideration for the execution of the note sued on was certain mining stock in the Golden Jack Mining Company, and that at the time of said sale and now said stock was utterly worthless and of no value. and if you further believe from the evidence that the plaintiff herein, prior to the assignment of the note to him, knew that said note was given for such worthless stock, or if you believe from the evidence that the plaintiff assisted one Grant Hart and others in consummating the transactions that induced the defendants to execute the note sued on, then your verdict should be for the defendants." (h) "The court instructs the jury that if you believe from the evidence that the note sued on was obtained from the defendants by means of fraud practiced on the makers by Grant Hart and others, as defined in other instructions, or that said note was given for worthless stock in the Golden Jack Mining Company, then it devolved upon the At the request of the defendants, the court plaintiff to prove by the greater weight or gave the following instructions: preponderance of the evidence that he procured said note before maturity for value, and in good faith, and, unless you so believe from the evidence, your verdict should be for the defendants, or, if you believe from the evidence that plaintiff assisted in consummating said deal as defined in other instructions, then your verdict should be for the defendants." (e) "The court instructs the jury that if you believe from the evidence in this case that one Grant Hart, the payee in the note sued on, in conjunction with other persons who were interested in the sale of stock in the Golden Jack Mining Company, for the purpose of securing the execution of the note sued on, falsely and fraudulently represented to the defendants herein the condi- [5] By instruction "e" it is declared that, tion of the face of ore in the south drift of the in case the jury find for the defendants on Golden Jack Mine, located about a mile south the question of fraudulent representation, of Stotts City, Mo., and fraudulently so ar- then if they believe from the evidence that ranged the stope in the drift in said mine the plaintiff, before the assignment of the so that the defendants were unable to ascer-note to him, knew of the fraud practiced on tain for themselves the true extent of ore defendants, or if they believe from the eviin the place there or its true ore-bearing qualities, and that defendants were thereby deceived and induced to execute the note sued on, and if you further believe from the evidence after so concealing and misrepresenting the said drift in said mine, if any, said Grant Hart and others, interested in the sale of said stock, falsely represented to the defendants the prospective income from said mine which could be obtained as a result of working on such face of ore, and that by reason of said misrepresentations the defendants were induced to sign the said note, believing them to be true, then the said note is void in the hands of the said Grant Hart; and if you further believe from the evidence that the plaintiff herein, before the assignment of the said note to him, knew of said fraud practiced on defendants, or if you believe from the evidence that the plaintiff act dence that the plaintiff acted in conjunction with the said Hart (payee) and others in inducing the defendants to execute the notes sued on and assigned in making the deal, the verdict should be for the defendants. This instruction should not have been given. The answer charges fraudulent representation by the payee Hart "in conjunction with other parties" not named and does not charge that the plaintiff made any of these representations. It is at least doubtful whether such pleading is sufficient to authorize this instruction. A careful reading of the record warrants the statement that there is no evidence tending to prove that the plaintiff acted in conjunction with the said payee or any one else in inducing the defendants to execute the note sued on, or in any wise assisted in making said deal in such a manner as to make plaintiff a party to the fraud In or connect him therewith. For this reason | Loy and Hutler, and also on an engineer's the instruction is erroneous as not being report he had; that Loy represented to him based upon the evidence. [6] Instruction "f" is erroneous: First, because, under the rules heretofore stated upon the question of failure of consideration, the instruction does not properly declare the law on that question; and, second, because, as in instruction "e," there is no evidence to warrant the latter part of the instruction authorizing a verdict for the defendants if the jury believe that plaintiff assisted the payee and others in consummating the transaction that induced the defendants to execute the note. We have not quoted instruction "g," but under the present ruling it is incorrect to the extent that it declares on the question of failure of consideration. Instruction "h" tells the jury that, if the note was obtained by means of fraud, the burden is on plaintiff to prove that he procured the note before maturity for value and in good faith. It is erroneous in that it also tells the jury that, if it is found that the note was given for worthless stock in the mining company, the same burden of proof devolves upon the plaintiff. As already stated, there is no question of failure of consideration in this case separate and apart from the question of fraud, and the mere fact that the stock may have been worthless from the standpoint of value does not constitute a defense, and the question whether or not the stock was worthless should not have been submitted to the jury as an issue for determination by them, nor should that body have been told that the fact that the stock was worthless in itself cast upon the plaintiff the burden of proof stated. The instruction is also erroneous in that it tells the jury that, if they believe that plaintiff assisted in consummating said deal, the verdict should be for the defendants. This for the reason that there is no evidence in the case that plaintiff did so assist, and further because the instruction submits to the jury the question of assistance by plaintiff in consummating the deal without regard to the character of that assistance or the situation or knowledge of the plaintiff in rendering same. It might very well be that one could assist in some degree and in some manner in consummating a deal by which some of the parties perpetrated a fraud and yet be entirely ignorant of the fraud and not negligent in being so ignorant. Plaintiff's participation in the fraud, if any was shown by the evidence, must have been a guilty participation in some degree before the instruction would be warranted. that it was a paying mine, etc. The evidence connects Loy with Hart, the payee of the note, in the transaction with defendants, but Wakefield's purchase of stock was entirely separate and apart from the purchase by defendants, being a different transaction at a different time, and this evidence should not have been admitted. It is not shown that these representations were intended to be or were in fact communicated to the defendants. For the errors above noted, the judgment in this case must be reversed, and the cause remanded for a new trial, and it is so ordered. ROBERTSON, P. J., and STURGIS, J., concur. FARRINGTON, J., not sitting. WILT v. COUGHLIN. (Springfield Court of Appeals. Missouri. Dec. 11, 1913.) 1. APPEAL AND ERror (§ 933*)-REVIEW-ORDER SETTING ASIDE VERDICT. In deciding, on defendant's appeal from tiff a new trial, that the court erred in refusthe refusal to set aside an order granting plaining to take the case from the jury, the facts should be considered in the light most favorable to plaintiff. Error, Cent. Dig. §§ 3425, 3426, 3772–3776; [Ed. Note.-For other cases, see Appeal and Dec. Dig. § 933.*] 2. APPEAL AND Error (§ 977*) REVIEW CORRECTING MISTAKE OF LAW. The appellate court should reverse an order sustaining a motion for a new trial, made through a mistake in construing the law. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. § 977.*] 3. LANDLORD AND TENANT (§ 150*)—DUTY TO REPAIR. In the absence of a covenant to repair, the landlord is not liable in damages for failure to keep the premises in repair during the tenant's possession. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. §§ 536, 538, 544-548, 555, 556; Dec. Dig. § 150.*] 4. LANDLORD AND TENANT (§ 125*)—DUTY TO REPAIR-IMPLIED COVENANT. There is no implied covenant by the landlord that the premises are in good repair when let; the landlord only being liable for his acts of misfeasance. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 441-443; Dec. Dig. § 125.*] 5. LANDLORD AND TENANT (§ 162*)-DEFECTS IN PREMISES-HIDDEN DANGERS. A landlord is liable for injuries proximate ly resulting from hidden dangers on the leased premises. [7] The court, over the objection of appellant, permitted the witness Wakefield to testify that he bought some stock in the company through the influence of Messrs. | 162.*] [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. § 629; Dec. Dig. § *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 6. LANDLORD AND TENANT (§ 169*)-ACTION | dence the court likewise refused defendant's FOR DAMAGES SUFFICIENCY OF EVIDENCE-request for a directed verdict. TERMS OF CONTRACT. Evidence, in an action by a tenant for injuries to his horse by falling into a cesspool in the front yard, held to show that the parties did not contemplate that that part of the premises would be used by the tenant to run horses on. [Ed. Note.-For other cases, see Landlord and Tenant, Cent. Dig. 88 644-646, 664-667, 681-684; Dec. Dig. § 169.*] 7. NEGLIGENCE (§ 58*)-PROXIMATE CAUSE. Plaintiff, in an action for consequential damages resulting from negligence, must show that such injuries would naturally and probably result from the negligent act and should have been foreseen by defendant as likely to result therefrom. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 71; Dec. Dig. § 58.*] 8. LANDLORD AND TENANT (§ 166*)-DEFECTS IN PREMISES-LIABILITY OF LANDLORD. Where a tenant's horse was kept in the barn lot some 60 or 70 feet in the rear of the house upon the landlord's premises, and the landlord's contract did not contemplate that it should be kept in the front yard, the landlord was not liable for injury to the horse by falling into a cesspool, covered by boards and earth, in the front yard, the existence of which the tenant knew. [Ed. Note. For other cases, see Landlord and Tenant, Cent. Dig. §§ 647-655, 657-660; Dec. Dig. § 166.*] 9. NEGLIGENCE (§ 29*)-USE OF PROPERTY. The owner of uninclosed land need not make it safe for pasturage and is not liable for injuries to stray cattle by falling into excavations thereon. [Ed. Note. For other cases, see Negligence, Cent. Dig. § 41; Dec. Dig. § 29.*] [1] As we are of the opinion that the trial court erred in refusing to take the case from the jury, it will be necessary to consider the facts in the light most favorable to the plaintiff. The plaintiff in April, 1908, rented of the defendant a cottage fronting east on Campbell street, which runs north and south in the city of Springfield. On the rear end of the lot, which was about 50 feet in width, was a barn some 40 feet in length and 16 feet in width, the length of the barn running north and south. This barn was located 60 or 70 feet back of the rear end of the cottage. Some outhouses covered the remainder of the width of the lot. The record does not show the existence of any opening directly between the barn or barn lot and the front yard where the cottage stood. Plaintiff testified that he and his wife rented this cot tage, and that soon after doing so he spoke to the defendant about keeping his horses there, and that she informed him it would be all right if he so desired and would fix the barn at his own expense. An alley runs along the outside of this lot back to the barn and barn lot. Dividing the yard from the alley, from the front of the yard back to the barn or barn lot, is a fence. On the side of the house, located some 40 to 60 feet from the barn and barn lot, was a cesspool which had been covered by pine boards, on top of which was earth. The cesspool was made when the house was com Appeal from Circuit Court, Greene Coun- pleted and had been finished only a short ty; Guy D. Kirby, Judge. Action by Clinton Wilt against Margaret Coughlin. A new trial was granted after verdict and judgment for defendant, and, from the refusal to vacate the order, defendant appeals. Reversed and remanded, with directions to enter judgment on the verdict. Wright Bros., of Springfield, for appel lant. FARRINGTON, J. This action was instituted in a justice's court, where the plaintiff prevailed. On trial anew in the circuit court, the defendant was given the verdict. Plaintiff, however, was successful in having his motion for a new trial sustained and in obtaining an order setting aside the judgIment which had been rendered on the verdict. The appeal by defendant is from the refusal of the trial court to set aside its order granting a new trial. At time when plaintiff moved in the house. Plaintiff admits knowing the cesspool was there but said he did not know the material used in covering the same. After On the 6th day of July, 1910, while plaintiff was residing at this place, he was awakened by hearing a noise in the side or front yard and on making an examination found that one of his horses had broken through the top of the cesspool and fallen in. several hours work plaintiff and others succeeded in getting the horse out. The testimony is convincing that the animal thereafter was of little value, owing to the injuries received by the fall into the cesspool. The evidence shows that the planks which covered the cesspool showed deterioration and rot. It is unquestioned that the horse got on top of the cesspool and that the covering was of insufficient strength to withstand his weight. Plaintiff charges the defendant with maintaining the cesspool in this condition with knowledge of its dangerous character, or that defendant by the exercise of ordinary care and prudence could have known its dangerous character. The reason specified by the trial judge for granting plaintiff a new trial was that the verdict was against the instructions of the court and the weight of the evidence. the close of the plaintiff's evidence, defendant requested and the court refused to give an instruction in the nature of a demurrer to the evidence, and at the close of all the eviFor other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes Plaintiff testified that the night before the occurrence he went to the barn and saw that his horses (this one in particular) were securely fastened in their stalls and in the |