¶1The opinion of the court was delivered by
¶2The plea of the general issue put in issue the fact, when the- defendant made the promise alleged in the second special count, and the consideration for making it. The court only submitted to the jury to find when he made the promise by executing the note that was put in evidence, and the amount due upon it.
¶3It was incumbent on the plaintiff to show a legal consideration to support the promise, — and if he introduced any evidence tending to show such a consideration for the promise as is alleged in the declaration, it was his right to have it submitted under proper instructions to the jury. We think the evidence of the plaintiff did so tend, and that it was not so variant from the allegations in the declaration as to justify the court in neglecting or refusing to submit the fact which it tended to show to be passed upon by the jury. The plaintiff did not waive that right, by not requesting that it should be submitted. The issue was made by the pleadings and the evidence, and it was the duty of the court to have' submitted that issue to be found by the jury, without any specific request or claim made that he should do so.
¶4The judgment is reversed, and cause remanded.