
    The Citizens’ Bank v. Levi Closson.
    1. The code contains no limitation upon the provision that the defendant may set forth as many grounds' of defense as he may have, except the implied limitation contained in the requirement that pleadings shall be verified by oath.
    2. In an action by an indorsee against the maker of a promissory note, the defendant by his answer, as a first ground of defense, denied the making of the note; and, as a second ground of defense, alleged that if the signature to the note was genuine it was obtained by a “ cunningly-devised scheme,” or trick, and that there was no valid consideration for the note, of which facts the indorsee had full knowledge when ho took the note. Held: That the defendant had a right to insist upon both these grounds of defense, and that it was error in the court to rule him to elect on which ground he would rely.
    Motion for leave to file a petition in error to reverse the judgment of the District Court of Ashland county.
    
      This was an action by the Citizens’ Bank against Clos•son, upon a promissory note alleged to have been made by him to R. R. Eenner & Co., or order, and indorsed to the bank before due. Closson set up ,two several defenses in his answer: 1. He denied the execution of the note. 2. He alleged that if the signature to the note was his it was obtained by “ a fraudulent and cunningly-devised scheme,” or trick, without his knowledge ; that he was induced by false and fraudulent representations of Eenner & Co. to sign certain papers, represented to be mere receipts or orders i'elating to a proposed agency for selling a patent invention, and if he signed the note his signature was procured by making him believe he was signing one of the receipts or orders ; that it was obtained without consideration, and that the bank had knowledge of these facts when it purchased the note.
    On motion of the plaintiff, the court ordered the defendant to elect upon which of these grounds of defense he would rely. The defendant excepted to the order, and elected to rely upon the first-named defense, the denial of the execution of the note, and the case was tried upon this issue.
    On the trial, the plaintiff gave in evidence a note of the tenor and effect of that described in the petition, with evidence .tending to prove the defendant’s signature thereto; and the defendant gave evidence tending to show that the note had been altered without his knowledge or consent by the payee’s agent, after its delivery, by inserting the words “ payable at the Eirst National Bank of Ashland, Ohio,” and also the words “ eight per cent, interest.” The note seems to have been in the form of a printed blank filled up, but whether the blanks left in the printed form were such as to indicate that they were to be filled up with these words, or whether these words, or either or any of them, were written .or printed, does not appear from the record. Upon this evidence the defendant asked the court to-instruct the jury that if they found that the agent of the payee “ ha,d made a material alteration in said note fraudulently,” after its delivery, and without the defendant’s knowledge or consent, the plaintiff could not recover.
    The court refused this request, and instructed the jury as follows : “ If you find from the evidence that the defendant executed the note in controversy, . . . and left blanks in the same, which were afterward filled up by inserting therein the words ‘ payable at Eirst National Bank of Ashland, Ohio,’.and ‘ eight per cent, interest,’ and these blauks were so filled without the knowledge of the plain'tiff, and that the plaintiff in due course, and for valuable consideration, became the purchaser of the note in suit, the defendant will be liable on said note, notwithstanding such alterations were made without his knowledge and consent.” To which instructions, as well as to the court’s refusal to instruct as requested, the defendant excepted.
    The jury having found for the plaintiff, and judgment having been entered upon the verdict, the defendant prosecuted his petition in error in the district court, where the judgment was reversed. Leave is now asked by the plaintiff* to file a petition in error to reverse the judgment of the district court, the questions presented being, first, whether the court erred in ruling the defendant to elect between his defenses; and, second, whether there was error in the. court’s instructions, or in its refusal to give the instructions requested.
    
      Smith & Smith, for the motion:
    Section 93 of the code does not confer the right to maintain inconsistent defenses in the same action. Vansantvord’s Pl. 284; Nash Pl. and Pr. 247; 8 How. Pr. 356; 6 Ib. 402; 2 Robertson, 612.
    
      M. R. Dickey and McCombs & Curtis, contra,
    cited: Code,, sec. 93; Stiles v. Comstock, 9 How. Pr. 48; Lansingh v. Parker, 9 How. Pr. 288.
   Welch, C. J.

The code allows a defendant to “ set forth in his answer as many grounds of defense, counter-claim,, or set-off as he may have,” and it contains no limitation upon this privilege, except what is implied in the provision that pleadings shall be verified by oath. There is no provision requiring the several grounds of defense to be technically consistent with each other, or requiring an express admission of the truth of averments sought to be avoided by new matter. It is merely required that the auswer shall be “ verified” by oath. When two alleged grounds of defense plainly contradict each other, they are not susceptible-of verification, because it is impossible for both to be true. The verification of one is the falsification of the other. In such a case, the answer, though sworn to, is not “ verified,” and should, on motion, be stricken from the files, or the defendant be put to his election. Was there any such contradiction or irreconcilable repugnancy between the two defenses set up in this answer ? We think not. Taken together, the two defenses amount to this : That the defendant is ignorant whether he signed the note or not; he does n.ot believe he signed it, and therefore denies it; and that, if he did sign it, his signature was obtained by fraud, and vsdthout consideration. The word “ note,” where'it occurs in the second defense, so far as the question of verification is concerned, can well be understood in the sense of “ supposed note.” It certainly is not consistent with the spirit and intention of the code that a party having one or the other of two good defenses, without the means of knowing, otherwise than from the developments to be made upon the trial, which of the two, in fact or in law, is his true defense, shall, at his peril, be compelled to elect in advance on which he will rely, to the exclusion of the other. When, from the nature of the case, it is rendered uncertain which of two grounds of defense is the true and proper one, it is competent for the defendant, in his answer, to set them both up, provided they will admit of being stated in such form that the answer can be sworn to -without falsehood, and in good faith. Such was the case here, and we think the court erred in putting the defendant to his election. '

We are of opinion also that the court erred in refusing the instruction requested. The proposition asked was good law, as applied to the case. The plaintiff had declared upon the note in its altered condition. If the alteration had been made fraudulently, and without the defendant’s knowledge or consent, the note, as described in the petition, was not his note. Whether, in any such case, an innocent indorsee could recover upon the original note was not the question. The question was whether the defendant made the note in its altered form. The court was undoubtedly Tight in telling the jury that the holder has an implied authority to fill up blanks which appear upon the face of the note to have been intended to be filled up. Rut that was no answer to the request made by the defendant. The character of these blanks does not appear, and the request was to charge the jury as to the effect of filling them up “ fraudulently, and without the defendant’s knowledge and consent.” If the blanks were in a form to imply authority to fill them up, the act of filling them up was not fraudulent, uor against the defendant’s consent, but by his authority.

On both these grounds, therefore, we think the district court was right in x-eversing the judgment of the common pleas. Motion overruled.  