
    No. 404
    BACH, Admr. v. BAKER
    No. 20259.
    Supreme Court
    On motion to certify.
    Dock. 1-7-27,
    5 Abs. 28.
    465. ERROR — May a reviewing court, after it had found claimed incompetent evidence was allowed by the trial court to go to jury, find that this evidence was not prejudicial?
    Attorneys — Moore, DeVaul & Moore for Bach; Matz & Matz and F. W. Ketterer for Baker; all of Woodsfield.
   This action was brought by John Baker against Adam Bach, as administrator de bonis non, of the estate of Adeline Gramlich, deceased, to recover on a promissory note in the sum of $1460, with interest at 6% from April 29th 1912. Three defenses were filed, putting in issue the execution and delivery of the note, failure of consideration and a plea of payment. The case was tried in the Monroe Common .Pleas, and resulted in a verdict in favor of Baker in the sum of $2664.50.

A letter which was written by Baker, which was offered in evidence stated that the consideration for this note was money which he had furnished to Adeline Gramlich during her lifetime to make a settlement with the heirs of her deceased husband. The evidence showed that some other parties had joined with him in furnishing this money, and that the other parties furnishing money for this purpose had been re-paid the sum of about $1000.

There was but very little, if any conflict, in the evidence as to the purpose for which Baker claimed this money was furnished. The trial court permitted Baker to offer evidence showing that Adeline Gramlich, the decedent, made her home with the Bakers and Mrs. Baker’s mother for one year without showing or attempting to show any promise, either expressed or implied, to pay for the same. Plaintiff was further permitted to offer evidence showing that his wife did some washing for decedent and without showing any promise, either expressed or implied, to pay for said service. The plaintiff was further permitted to show services performed by himself after the note was given, all of this over the objection of the defendant. The case went to the jury, and the jury ignored the undisputed testimony as to the payment and found in favor of plaintiff for the full amount claimed. The Court of Appeals held that the admission of the evidence above referred to was not prejudicial and affirmed the judgment of the Common Pleas Court.

Note — Motion to certify overruled; 2-15-27, 5 Abs. 106.  