Pierce v. Harper

249 F. 867 | 6th Cir. | 1918

SESSIONS, District Judge

(after stating the facts as above). The defense pleaded was that the note was given and obtained without consideration. Hence the burden was upon paintiff to establish by a preponderance of the evidence a valuable consideration for the note. Ginn v. Dolan, 81 Ohio St. 121, 90 N. E. 141, 135 Am. St. Rep. 761, 18 Ann. Cas. 204. Has she sustained that burden ?

[1,2] The note itself, when produced and introduced in evidence, carried with it the presumption that it was given for a valuable consideration. Section 8129, General Code of Ohio. Such consideration may consist either of an advantage or benefit received by the maker, or of a disadvantage or detriment suffered by the payee. An answer to a suit upon a promissory note, which merely avers that no consideration moved to the promisor, is not sufficient, but, to constitute a defense, must also aver that the promisee did not thereby suffer a loss or detriment; and the pleading must be supported by proof. Dalrymple, Adm’r, v. Wyker, Adm'r, 60 Ohio St. 108, 53 N. E. 713. Tested by this rule, the facts which defendant pleaded and offered to prove did not overcome or counterbalance the prima facie case made by plaintiff, and did not constitute a defense to the action. It clearly appears that the conditional or contingent indebtedness of the defendant to the estate of E. R. Hart was partially canceled and discharged by the giving of the note to plaintiff. This in itself constituted, at that time, a valuable cónsideration moving to defendant. It is a fair inference, also, that plaintiff received and accepted the note in lieu of cash to which she was entitled from her uncle’s estate. If so, she suffered a detriment or loss, which constituted a valuable consideration for the note. In either case she was a bona fide holder for value.

The judgment is affirmed, with costs.