¶1This action was brought upon a note made by the defendant and payable to the plaintiff “for the use and "benefit of Betsey Bartholomew,” for twenty-five dollars, and interest.
¶2The defense consisted of a receipt as follows: “Received of A. 0. Bartholomew, three dollars and twenty-five cents, it being in full of all accounts, notes whatsoever up to this date,” and is signed by the plaintiff. The receipt is dated nearly six years after the date of the note. The note and receipt constitute the whole evidence in the case. Upon this state of the proof the court instructed the jury, among other things, “ That the papers in this case do not show any fact which tends to prove that the note in this suit is excluded from the receipt.” This instruction, we think, was too strong and should not have been given. These papers disclose the fact, that the note was given to the plaintiff for the use of Betsey Bartholomew, who was the only party beneficially interested in it. That the amount dire on the note at the time the receipt was given, was nearly thirty-four dollars, while the receipt was for hut three dollars and twenty-five cents. The discrepancy in the amounts of the twó, shows that there must have been other dealings between the parties to the cause. How these facts, apparent on the face of the papers, certainly tended to prove, that the note was not in the contemplation of the parties when the receipt was given, and had the jury come to such a conclusion, we should not have felt inclined to disturb their verdict. It would not have been a violent conclusion for the jury to have arrived at, had they believed .that the parties looked upon the note as belonging exclusively to Betsey Bartholomew, who alone was the party really interested in it, and overlooked the mere naked technical title, which was in the plaintiff. Such might be a very common occurrence among men, unacquainted with the technical rules of law, and accustomed to look at the real substance of the transaction. "We think the jury should have been allowed to draw their own inferences from the facts in the case.
¶3•The judgment must be reversed and the cause remanded.
¶4Judgment reversed.