This is the rule in Minnesota and a review of the evidence in this connection is entirely appropriate. Defendant cites: Strickland v. Hetherington, Okla., 353 P.2d 138. Morrison v. Johnson, 148 Minn. 343, 181 N.W. 945; Trost v. Brey, 156 Minn. 242, 194 N.W. 617; Hogan v. Church of St. Anne of LeSueur, 237 Minn. 52, 53 N.W.2d 449.
See Hart Industrial Supply Co. v. Craig, 405 P.2d 93 (Okla. 1965). Strickland v. Hetherington, 353 P.2d 138, 139 (Okla. 1960), holds that "where the consideration of a note is disputed and there is conflicting testimony, the jury must decide the point." "Where lack of consideration for a note is pleaded as a defense, parol evidence may be presented to show the lack of consideration.
When parol evidence is sought to be admitted to show failure of consideration, the law draws a distinction between the terms "failure of consideration" and "want of consideration". Strickland v. Hetherington, Okla., 353 P.2d 138, 140 [1960]; see footnote 12 supra. Failure of consideration implies that a bargained-for consideration, originally in existence and good, has since become worthless or has ceased to exist or been extinguished, partially or entirely.
Parol evidence is admissible to show failure of consideration as a defense to specific performance, Ford v. McGregor, 314 Ky. 116, 234 S.W.2d 493 (1950), and a recital in a written agreement that a stated consideration has been given may be contradicted by parol. Strickland v. Hetherington, 353 P.2d 138 (Okla. 1960). Defendants pleaded failure of consideration as a defense and should be permitted to prove it.
Prior to the adoption of our Commercial Code, we held that when the consideration of an instrument was disputed and the evidence with reference thereto was conflicting, the issue was to be submitted to the jury. See Strickland v. Hetherington, Okla., 353 P.2d 138. The Commercial Code did not change this rule, and we see no error in the trial court's refusal to direct the verdict or enter judgment notwithstanding the verdict. Judgment of the trial court is affirmed.
"The burden of showing a want of consideration sufficient to support an instrument lies with the party seeking to invalidate or avoid it." In Strickland v. Hetherington, Okla., 353 P.2d 138, a suit by the payee against the maker of a note, this Court said: "It must be conceded that the note involved here imported a consideration, and that its introduction in evidence made out a prima facie case.
" As urged by defendants, the determinative rule in such cases is that expressed in Strickland v. Heatherington, Okla., 353 P.2d 138, 139. There, quoting from earlier decisions, we held the general rule against admission of parol testimony in such cases does not apply when such evidence is offered to show entire or partial failure of consideration.
In an action on a promissory note by one who is not a holder in due course, both fraud in the procurement of the note and absence or failure of consideration are valid defenses. Planters Trading Co. v. Golden Grocery Co., 139 Okla. 246, 281 P. 771; Harvey v. Thomas, 150 Okla. 106, 300 P. 772; Frank Harber Buick, Inc. v. Miller, Okla., 328 P.2d 716; Strickland v. Hetherington, Okla., 353 P.2d 138; Hawkins v. McElhanon, Okla., 315 P.2d 667; Selected Investments Corporation v. Lester, Okla., 327 P.2d 668. Under the evidence as outlined, the defendants were entitled to a decree for rescission and cancellation of the entire obligation and the jury did, in effect, declare a rescission.
Parol evidence would be admissible to vitiate such obligation. See, Strickland v. Hetherington, Okla., 353 P.2d 138; Harvey v. Thomas, 150 Okla. 106, 300 P. 772. In any event, the allegations of the pleadings present controverted issues of fact which may not be resolved without introduction of proof. It is error to render judgment on the pleadings if there is raised an issue of fact upon which a valid judgment might be rendered.