
    Trubey v. Betz.
    (Decided November 6, 1934.)
    
      
      Messrs. Short é Short and Mr. JR. R. Trubey, for plaintiff in error.
    
      Mr. B. A. Myers, for defendant in error.
   Guernsey, J.

The uncontroverted evidence in this case shows that the note upon which this action is based, was for the principal sum of $340 and for interest at the rate of three per cent, per month, and was executed and delivered by plaintiff in error, R. R. Trubey, to The Wagner Loan Company, an Ohio corporation, authorized to do a loan business, under date of May 8,1925, and was payable one month after date; that the loan was made through The Wagner Loan Company which directly and before the maturity of the note, turned it to a special account designated as “Wagner Special Account” in which the funds of Celina people, including the Andrews and the defendant in error Mary Ellen Betz, were principally kept, no funds of said Mary Ellen Betz, however, being kept in said account until the turning over of said note; and that the name of The Wagner Loan Company was stamped on the back of said note with a rubber stamp but such indorsement did not bear the name of any officer of the loan company.

The notes covered by this account were kept in a separate file in the office of the loan company and the account and file were under the jurisdiction of Ira Wagner who at the time of and previous to the execution of the note mentioned was general manager of the loan company.

When Wagner was in Celina, he had acted as agent for a number of people there and when he started the loan company in Lima he took their money and the notes which he was collecting for them, to Lima and continued to collect part of the notes.

The party to whom a note owned by the loan company was turned in the special account received a certain percent, six or eight, and the loan company, as long as they were collecting, received the balance of the interest on the note, which was at the rate of three per cent, per month, for collecting the loan. Mr. Wagner looked after the special accounts for Mr. Andrews, Miss Betz and George N. Betz the father of Miss Betz. The special account file was kept in the same room and in the same vault as the valuables of the loan company.

On December 21, 1917, the said Mary Ellen Betz being then a child, George N. Betz her father started an account for her with The Wagner Loan Company evidenced by a passbook of said company with an indorsement at the head of each sheet evidencing credits in the form of a promissory note of said company ; and additional credits were added from time to time to said original deposit by way of deposits and credits for interest until said account on June 1, 1925, showed a balance to her credit of $375.09, no withdrawals having been made at any time from said account.

The evidence shows that the fund represented by said passbook was the purported consideration for the turning over of said note to said special account, but there is no indorsement in said passbook showing that the value of said note was credited on the amount owing Mary Ellen Betz thereon and there is no evidence tending to show the disposition of the balance shown on the passbook in excess of the principal and interest of said note.

There is no evidence tending to show that Mary Ellen Betz had any personal negotiations with Mr. Wagner or any of the other officers or employees of the loan company with reference to the acquisition of said note by her, or that she had any knowledge of the existence of said note until her father received it from Melvin C. Light, an attorney in Lima, on April 19, 1919.

The evidence of George N. Betz, the father, is to the effect that when he started the account for his daughter he turned it over to Wagner, and he, Wagner, practically took care of it, and that Wagner was looking after the matter for him; and that the first information he had that the note sued on belonged to him or his daughter was about June 15,1927, when he received a letter from Wagner advising him to that effect, although he had some understanding it was secured, but did not know what way. It will be noted that this evidence is to the effect that Wagner did the certain things mentioned and not that either Betz or his daughter had conferred authority on him to do them.

On June 10, 1925, within two days after said note became due and while it still remained in the special account and file at the office of the loan company, plaintiff in error tendered to the loan company payment thereof by way of an assignment of an amount owing by said loan company on one of its notes equal to the amount then owing on the note of plaintiff in error, which tender was then refused by said loan company but which has ever, since been kept good by the plaintiff in error.

From the fact that Wagner, who was the general manager of the loan company, practically took charge of the account which was evidenced by the passbook, and looked after the matter for her father, no inference can arise that Wagner was authorized to treat the account in any different manner than ordinary passbook accounts were treated or that Wagner had been given any authority to trade the amount owing the defendant in error on the passbook, for the note.

From all the evidence it is clear that at no time prior to the time said tender was made, had there been any meeting of the minds between the said Mary Ellen Betz either acting on her own behalf or through her father, and the loan company, as to the acquisition of said note by her, and that consequently up to the time of such tender no contract existed between her and said loan company for the sale of said note to her, and that title to said note had not then passed to her. This being the case, such title as she acquired to such note must be based on the ratification by her of the acts of Wagner in transferring the note to the special account.

Ratification implies a knowledge of the facts. 1 Ohio Jurisprudence, 734, Section 65. And as she had no knowledge of the facts until long after the Trubey tender, her ratification, if any, was of a date subsequent to the Trubey tender. Third persons have the right to treat an unauthorized act or contract, while it remains unratified, as having no existence whatever. 21 Ruling Case Law, 922, Section 100. The right of plaintiff in error under his tender having intervened before ratification, such ratification could not have the effect of depriving the plaintiff in error of such right.

The presumption that she was a holder in due course, of the note by reason of the possession of the note at the time the suit was brought, is nullified by the facts as shown by the evidence, as evidentiary presumptions never obtain against facts though they are often allowed to supply proof of facts. Newcomb’s Lessee v. Smith, Wright, 208.

As the defendant in error did not acquire any title to said note until after maturity and after said tender was made, she acquired it subject to the defense of tendered payment which existed at that time and as the tendered payment was a complete defense against her claim. As the evidence shows the plaintiff in error has a complete defense to the claim and as he made motions for a directed verdict at the close of defendant in error’s evidence and at the close of all the evidence, he is entitled to have the judgment rendered by the lower court reversed and final judgment entered in his favor which will be entered accordingly.

Judgment reversed and final judgment for plaintiff in error.

Klinger, J., concurs.

■ Crow, P. J.,

concurs in the judgment of reversal, not on the ground set forth in the foregoing opinion, but for the reason that the verdict is not sustained by sufficient evidence, because the presumption that plaintiff is a holder in due course, in connection with the other evidence tending to prove ownership, made a prima facie case upon which plaintiff was entitled to go to the jury.  