
    McDonald v. Mayer.
    August 12, 1895.
    Complaint on note. Before Judge Griggs. Early superior court. October term, 1894.
    Morris Mayer sued T. B. McDonald on a promissory note for $150, payable- to J. M. Cox or bearer. Tbe case was submitted to tbe judge without a jury, on an admitted state of facts, to wit: February 21, 1893, McDonald gave said note, due October 1, 1893, to Cox, wbo- was tben due Mayer on a pre-existing account a sum larger than tbe amount of tbe note, and Mayer was about to sue Cox on said account. Cox .deposited tbe note before .maturity witb Mayer as collateral security for said account, and Mayer forbore to' press bis claim against Cox on tbat account, but advanced no new sum on account of tbe collateral security. McDonald, wben tbe note was first presented to bim, notified Mayer tbat be bad defences against it and would not pay. it. In open court be offered to pay Mayer tbe interest on' his account from tbe time tbe note was deposited witb bim.
    It was also agreed, tbat if under tbe foregoing facts tbe 'court would allow it, defendant might make proof of a plea be bad filed, and which plaintiff bad moved to strike, denying indebtedness to Mayer or that Mayer became a bona fide holder of the note before it became due; and setting np failure of consideration and fraud in the representations of Cox, whereby the note was given for certain ironing-pads with right to sell the same in Early county, and for a share of stock in the Central Ironing-Pad Co., the pads never having been delivered, and the company being a myth.
   Atkinson, J.

The action being upon a promissory note which had been pledged to the plaintiff as collateral security for the payment of an open account, the admission of the defendant in the agreed statement of facts, to the effect that the plaintiff had obtained the note before its maturity, did not cut off his defense that the plaintiff was not a bona fide holder of the note, and that the consideration thereof had failed; nor render inadmissible evidence supporting a meritorious plea of failure of consideration. It was therefore erroneous to strike the plea, refuse to permit the defendant to introduce evidence in support of it, and render a judgment against him. Evidence successfully impeaching the bona fides of the plaintiff’s holding, would let in against him all defenses to the note which would have been available against the original payee. Judgment affirmed.

The court struck the plea and rendered judgment for plaintiff. To this ruling defendant excepted.

R. II. Poioell é Son, for plaintiff in error.

D. II. Pope, contra.  