172 N.E. 568 | Ohio Ct. App. | 1929
This case is here on error from the court of common pleas of Hamilton county, wherein, at the conclusion of defendant's evidence, a verdict was instructed for the plaintiff, E.A. Weber, defendant in error in this court.
Weber sued upon a note, alleging it to be due and unpaid, and that, before maturity, for a valuable consideration, he purchased the note, and that payment was refused upon presentment. A copy of the face of the note is as follows:
"$1,000.00 Cincinnati, O., August 3rd, 1928.
"Thirty days after date we promise to pay to the order of F.A. Rinehart the sum of $1,000 and 00 cts. Dollars, payable at Columbia Bank Savings Co. *507
"Value Received with interest @ 6% per annum. "Cincinnati Brush Mop Mfg. Co., "Albert Ungerbuehler.
"For Unfinished work on bldg."
The defense was that there was no consideration for the note, and that the indorsee plaintiff had knowledge of this infirmity. Fraud was not alleged as a defense, although the court gave the defendant ample opportunity to amend and allege fraud.
The evidence showed that the note was given the payee in consideration of the promise of payee to perform certain work for the maker, upon a building which the maker was having altered, and that this work was not performed. The evidence showed a friendly relationship existing between the payee of the note and the plaintiff indorsee.
It is contended that the consideration for the note was the work to be performed by the payee, and that, there being evidence indicating that the work was not performed, there was no consideration for the note, and that therefore an infirmity existed in its inception, of which the plaintiff indorsee must have known from the circumstances shown by the evidence.
It is further urged that the words upon the note, "for Unfinished work on bldg.," were sufficient to advise the indorsee of the infirmity existing in the inception of the note.
Section 8129, General Code, provides that every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. Section 8130, General Code, provides that value is any consideration sufficient to support a simple contract. There was no evidence introduced by the defendant *508 to meet the presumption of value, or any evidence indicating that value, within the meaning of Section 8130, General Code, did not exist, but, on the contrary, the evidence showed a promise to perform the work by the payee of the note, which promise could be, and was, the supporting consideration for the note.
There was some question raised as to the negotiability of the instrument, owing to the presence of the words, "for unfinished work on bldg.," appearing on the face of the note. Under Section 8108, General Code, it is provided that "an unqualified order or promise to pay is unconditional within the meaning of this chapter, though coupled with: * * * 2. A statement of the transaction which gives rise to the instrument." The instrument was therefore negotiable, and clothed with all the presumptions accruing to a holder thereof. There being no evidence introduced to show any infirmity in the inception of the note, or to meet these presumptions, the verdict was properly instructed, and the judgment is affirmed.
Judgment affirmed.
CUSHING, P.J., and HAMILTON, J., concur. *509
