
    No. 274
    Bates v. McDowell
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1312.
    Decided March 4, 1927
    (Judges Shields, Lemert & Houck, 5th Dist., sitting.
    923. PLEADING — Where there is a suit upon a promissory note and a general denial and lack of consideration are set up as a defense, and no reply is filed thereto, if defendant fails to make objection at trial time he cannot avail himself of this fact in a reviewing court.
    225. CHARGE TO JURY — A charge that, where lack of consideration for a promissory note is set up, the burden is on the plaintiff to prove there was consideration, is correct.
    First Publication of this Opinion
    Attorneys — W. C. Bates for Bates; F. S. Monnett for McDowell; both of Columbus.
   HOUCK, J.

Wesley C. Bates filed an action in the Franklin Common Pleas against James W. McDowell upon a promissory note for $500. The trial resulted in favor of McDowell and this is a proceeding in error to reverse the lower court.

Two defenses were set forth in McDowell’s answer, first a general denial and second, lack of consideration, to which no reply was filed. Counsel for McDowell claim that no error will lie because no reply was filed, and cite Ellen v. Thracker, 16 C.C. (ns.) 469.

The Court of Appeals held:

1. If no reply is filed to answer of new matter constituting a defense, but the cause is tried without objection as though such-allegations had been denied a demand for judgment on the pleadings after each party has introduced his evidence, is too- late. Lovell v. Wentworth, 39 OS. 614.

2. The charge of the lower court, that a promissory note prima facie made with consideration but when lack of consideration is set up the burden is on the plaintiff to prove consideration, is correct.

3. Where in a suit on a promissory note the defense is that the note was given or obtained without valuable consideration, the plaintiff has the affirmative of the issue and the burden of proof rests upon him, at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced at the trial. Ginn v. Dolan, 81 OS. 121.

Judgment affirmed.

(Shields & Lemert, JJ., concur.)  