
    Himelright v. Johnson.
    Error to the District Court of Summit County.
    
      Humphrey Stewart for plaintiff in error.
    
      Kdgerton Kohler for defendant in error.
   By the Court.

September 23, 1876, the plaintiff in error executed and delivered to Steese & Co., his promissory note for the sum of $800, due in sixty days. This note was accommodation paper and given without consideration. Samuel Steese was a member of the firm of Steese & Co. On the 12th of October, 1876, Samuel Steese, having first endorsed said note with the firm name, ‘delivered it to Cornelius Johnson, as collateral security for an individual debt of Samuel Steese to Johnson. On the failure of Samuel Steese to pay his debt, Johnson brought an action upon this note against Himelright, as maker, and the members of the firm of Steese & Co., as indorsers.

On the trial in the court of common pleas, the counsel for Himelright requested, among other things, that the court should charge the jury as follows:

“In order to have acquired title to the note, the plaintiff must establish, by testimony, that Samuel Steese had a right to transfer the title to secure his individual debt.”

This proposition the court gave to the jury, after adding thereto the following words :

“ If he, as a member of the firm, held that note and transferred it to the plaintiff, then it is good as against the defendant.”

To the action of the court, in adding these words to the request of the defendants’ counsel, said counsel excepted.

Held: This proposition, as amended by the court and given to the jury, was misleading. Railway Co. v. Krouse, 30 Ohio St., 222; followed and approved.

Judgment reversed.  