Miller v. Kemble

THE COURT.

Defendant duly executed and delivered to the plaintiff the promissory note set out in the complaint. Two defenses are pleaded in the answer, viz.: That through the fault of the plaintiff the consideration for the note has wholly failed; and that there was no consideration for the execution or delivery of said note. The court found against the defendant on said second defense, but omitted to make any formal finding on the issue raised by the plea of failure of consideration through the fault of the plaintiff.

It is contended by appellant that the judgment should be reversed because the court did not make any finding upon the said plea of failure of consideration. On the record before us, there is no merit in this contention. The evidence before the trial court was wholly insufficient to prove the alleged failure of consideration. It does not even tend to establish such defense; therefore, if there

[67]

had been any finding of fact upon that issue, the finding necessarily would have been favorable to the plaintiff.

The judgment is affirmed.