
    No. 564
    HARBINE v. DAVIS et
    No. 19882.
    Supreme Court
    On motion to certify.
    Dock. June 9, 1926.
    831. NEGOTIABLE INSTRUMENTS — Where negotiable promissory notes are negotiated to a third party and said\third party is familiar with the transaction for which the notes were given and thereby knows that there was no consideration for the notes may said party recover in an action against the payer?
    Attorneys — F. H. Dean and J. T. Harbine, Xenia, for Pltf.; A. H. Seharrer and O. J. Bard, Dayton, for Deft.
   John T. Harbine, Jr., brought this action originally in the Montgomery Common Pleas agaist Robert Davis, upon a certain promissory note executed by Davis, the note being secured by a mortgage. The note was made payable to one Rawls who was also the mortgagee.

The defense was failure of consideration and a mortgage of such failure on the part of Harbine, said notes having been given in payment of a truck which was never delivered.

The Common Pleas overruled a motion and demurrer to the answer as it found that a good defense was stated, which ruling was affirmed by the Appeals.

Harbing in the Supreme Court contends:

1. That the demurrer should have been sustained because facts were not stated to constitute a good defense to the allegations in the petition.  