
    (Sacond Circuit — Franklin Co., O., Circuit Court
    January Term, 1892.)
    Before Shearer, Stewart ahd Shauch, JJ.
    Maria Behlen v. Henry Fraas.
    When the lender of money, contemporaneously with the loan, and with full knowledge of all the facts affecting the transaction, takes a promissory note for its repayment, he thereby conclusively elects to rely upon the maker.
    Error to Court of Common Pleas of Franklin County.
    Fraas filed his petition in the court below against the plaintiff in error to recover money loaned. Her answer was a general denial. Upon the trial of the case the plaintiff introduced evidence tending to show that before the 5th of August, 1887, C. Behlen, the defendant’s husband, applied to him for a loan of money, and that he denied the application. The wife then joined her husband in urging Fraas to make the loan, saying “ our taxes have not been paid.” Being thus importuned, he borrowed the money, took it to the residence of the Behlens, delivered it to the husband in the presence of the wife, and took therefor a promissory note executed by C. Behlen alone, and payable in ninety days with interest. His testimony also tends to show that a portion of the money was used in paying taxes on the property of Mrs. Behlen. He admits the acceptance of the note by him, and that he knew at the time of the making of the note all the facts upon which he now relies.
    Mrs. Behlen denies that she solicited a loan from Fraas either to herself or her husband, and denies that any of the money was used for her benefit. The jury found for the plaintiff, and the court of common pleas overruled a motion for a new trial. That ruling is the subject” of the error assigned.
    
      John D. Sullivan, for plaintiff in error.
    
      Alex. Krwm/rn, contra.
    
   Shauck, J.

The burden of proof was upon the plaintiff below. The testimony of the parties was in direct conflict. It seems clear that if the jury had given its proper probative effect in her support to the fact that the sole note of the husband was taken in consideration of the loan, the verdict would have been for the plaintiff in error.

But upon principle and authority the acceptance of a note under such circumstances, is in law, conclusive of the question which the trial court left to the jury. There is neither allegation nor proof that the name of Mrs. Behlen was left off the note by mistake or omission, nor that any fact that is now disclosed was not then known by the lender of the money. If, therefore, he might elect whether the husband, or the wife, or both should be debtor to him on account of the loan, he made an election by which he is conclusively bound. Bishop on Contracts, 1078 and 1085 ; Paterson v. Gaudesequi, 15 East 62; Coxe v. Devine, 5 Harring, 375 ; Silver v. Jordan, 136 Mass. 319.

The judgment oí the court of common pleas will be reversed, final judgment will be rendered for the plaintiff in error and the cause remanded for execution.  