18 Ohio App. 185 | Ohio Ct. App. | 1923
On February 16, 1922, tbe defendant in error took a judgment in tbe Court of Common Pleas against plaintiff in error Stanley Roberts upon a cognovit note in tbe sum of $10,-000, with interest. Tbe judgment was taken without issuance and service of summons upon tbe defendant, Stanley Roberts. Thereafter, on March 10, tbe defendant Roberts filed a motion to set aside tbe judgment upon tbe ground that tbe judgment was taken upon a warrant of attorney for more than tbe amount due from tbe defend
Thereafter, on April 6, the motion came on for hearing and was submitted to the court upon the answer which the defendant sought to file in the action and which was presented to the court as an affidavit in support of the motion. No other evidence was offered. Whereupon the court found that the answer tendered and offered in evidence did not contain facts sufficient to constitute a defense to the petition, and overruled the motion to vacate the judgment. To this action of the Court of Common Pleas the defendant excepted and filed his petition in error in this court to reverse the judgment.
The record shows that the judgment was regularly entered against the defendant upon the cognovit note, and the question addressed to this court is: Did the Court of Common Pleas abuse its discretion in declining to set aside and vacate such judgment?
It is not claimed by the plaintiff in error that there was any error in computation whereby the judgment was entered for a larger amount than was properly due upon the promissory note. His contention is that by reason of a complete defense to the note there was nothing due from him upon the note, and, therefore, that a judgment for any amount would be for an excessive sum. It may be said, in view of the fact that the judgment was talien without notice to the defendant, that an an
He further alleges in the answer facts concerning the renewal of the “paper writing,” the payment of interest by the corporation, the affixing of revenue stamps, etc. He also alleges that the bank is not insolvent, that its capital stock is unimpaired, and that no rights of third persons have intervened, and says that “said paper writings were used by the plaintiff for the sole purpose of concealing’ the real transaction between the defendant and said company as hereinbefore set forth.”
The court finds that there are two grounds, which require an affirmance of the judgment of the Court of Common Pleas. In the first place the defendant in the Court of Common Pleas presented himself to the court asking that a judgment which had been formally and regularly entered be set aside. The reason assigned for this was that the instrument, which is referred to in the answer presented as a “paper writing,” but which in fact was the promissory note with the warrant of attorney attached, was executed by him for the purpose of enabling the bank to perform an act in violation of the national banking laws and to deceive the national bank examiners. It is difficult to see how such an appeal could be granted upon any ethical or legal grounds. It is contended that although a loan was made by the national bank in
Secondly, we find that in order to prove the defense pleaded it would be necessary to violate the well-settled rule which precludes the admission of parol testimony to alter or vary the terms of a written contract. In this, action it is conceded that in order to establish this defense it must be proved by parol evidence. The general rule is so well recognized that a citation of authorities would seem to be unnecessary.
In Cummings v. Kent, 44 Ohio St., 92, it was held that evidence of a parol agreement prior to, or contemporaneous with, the drawing and delivering of a bill of exchange, to the effect that the drawer is not to be liable as such, is inadmissible. In Beecher v. Dunlap, 52 Ohio St., 64, it was held that evidence of a parol agreement made at the execution and delivery of a note, which tended to vary the terms of the written instrument, was inadmissible. To the same effect are Cassilly v. Cassilly, 57 Ohio St., 582, and Martin v. First Natl. Bank, 30 C. C., 398.
It is not claimed in'this case that the defendant Roberts was induced to sign the note by a trick,
“In such case, the delivery may be shown to have been conditional, or for a special purpose only, and not for the purpose of transferring the property in the instrument.”
The facts, stated fail to show any conditional delivery, and the only thing that could be claimed for the defendant under this statute would be that the note was delivered for a special purpose only. But it will be noted that the statute as quoted con
The matter has received much attention by courts, and the cases are collected in a very extensive note under Vincent v. Russell, 20 A. L. R., 417. In that note attention is called to the fact that in Pennsylvania the rule as to the admission of parol evidence to vary the terms of a written instrument does not prevail. Concluding the note, the author states that there are some cases that take the view that an oral agreement that a note was delivered for some special purpose, or was not to become an obligation, is admissible. The cases so holding are collected and discussed. The case of Storey v. Storey, 131 C. C. A., 269, 214 Fed., 973, is there discussed. This was a decision made by the U. IS. Circuit Court of Appeals for the Seventh District, in which Section 8121, General Code of Ohio, was construed, and it was held by that court that under the facts and circumstances of the case evidence that the note was only
‘ ‘ Section 16 of the Negotiable Instrument Act is merely a codification of the general law in that respect as established by preponderant and sound authority. ’ ’
Certainly the general law in that _ respect, as established by the very great weight of authority in the United States and by all of the authority in the state of Ohio, is that such evidence as is requisite to establish the facts pleaded in the answer in this case is inadmissible. It is said that the answer shows that there was no consideration for the note. We think this contention is not sound for the reason that the loan of $10,000 to the Gris-wold Wagg Motor Company was made only because of the giving of this note, and this constitutes sufficient consideration to sustain the note.
For the reasons stated the judgment will be affirmed.
Judgment affirmed.