
    PRESUMPTION AS TO VALIDITY OF PRIOR. DELIVERY.
    [Circuit Court of Hamilton County.]
    The Carrara Paint Agency Company v. The American National Bank of Barberton et al.
    Decided, December 29, 1906.
    
      Drafts and Acceptances — Denial of Execution of — Burden of Proof— Validity of Prior, Conclusively Presumed, When — Banks and Banking — Error—Evidence as to when Signature of Acceptor was Placed on Draft.
    
    Where the execution of the acceptance sued on is denied, the burden of proving such execution is thrown upon the plaintiff.
    The American National Bank sued the Carrara Paint Agency Co., as acceptor, the Twentieth Century Cash Register Co., as drawer, and O. E. Robinson, as endorser of a bill of exchange for $2,500. At the trial below an instructed verdict was returned for the bank for the full amount of its claim.
    .The citations of the paint company in support of its petition in error were: Chicago- 'Electric Co. v. Hutchinson, 25 111. App., 476; Cray v. Turnstall, Fed. Cases, 5730; Walsenburg Water Co. v. Moore, 5 Colo. App., 140; First National Bank v. Carson, 30 Neb., 104; Monitor Plotv Works v. Born, 33 Neb,, 747; Siefke v. Siefke, 22 N. T. Supp., 546; Wallon v. Wallon, 8 111. App., 69.
    Giffen, J; Jelke, P. J., and Swing, J., concur.
    The defendant, the Carrara Paint Agency. Co., denied by answer that it ever made, executed or delivered, or ever authorized to be made, executed or delivered, the acceptances set forth in the petition. The burden of proving the' execution of the acceptances was thereby placed upon the' plaintiff. Pavey v. Pavey, 30 O. S., 600; Booco v. Mansfield, 66 O. S., 121: Sections 5190 and 6577, Revised Statutes.
    The cashier of the bank testified that the signature of the Carrara Paint Agency Co. was “put upon the drafts before they came into the bank”; but this was in answer to a question which assumed that the signatures were genuine. Counsel for defendant objected to this question, but the court overruled the objection; to which ruling the defendant excepted.
    This was prejudicial error. If the bank is a holder in due course a valid delivery of the drafts by all parties prior to it so as to make them liable to it is conclusively presumed; Section 3171o, Revised Statutes.
    Judgment reversed and cause remanded for a new trial.
    
      C. 17. Baker, for plaintiff; in error.
    
      Karch c§ Quasser, for the American National Bank.
    
      Harmon, Colston, Goldsmith & Hoaclly, for the Twentieth Century Cash Register Co. and O. E. Robinson.
     