
    No. 233
    HEDDESHEIMER v. THOMANN, Admr.
    Ohio Court of Appeals, Summit County
    No. 648.
    Nov. 29, 1922
    (Akron Daily Legal News)
    PROMISSORY NOTE — (1) Want of consideration not a defense to note given for property bought at judicial sale — (2) Defense of fraud waived by request to submit evidence on the other defense— (3) Applcation of caveat emptor rule — (4) Defense that property sold was not subject to judicial sale not to be set up — (5) Chose in action valid consideration for a note.
    Error to Summit Court of Common Pleas
    Atttorneys-^-May, Zesiger &> May,-for Heddesheimer; Walter Selegue, for Thomann.
   FUNK, J.:

Epitomized Opinion

M. Thomann, administrator of the ‘estate of B. Thomann, brought action on a promissory note given by Heddesheimer for $1,000 for an interest in the stock of a proposed rubber company for which stock decedent had paid $1,000. Heddesheimer set up the defense of want of consideration and fraud in obtaining the note. Thomann replied that Hed-desheimer received as consideration all the interest acquired by B. Thomann in the stock of the said rubber company and denied the allegation of fraud. Thomann also claimed that the answer did not constitute a defense as against an administrator and that said interest or chose in action having been obtained at a judicial sale under the direction of the Probate Court could not be attacked collaterally as a defense to the note sued on. Held by Court of Appeals in affirming judgment for Thomann:

1. Want of consideration is not a defense to a promissory note given for property bought at a judicial sale.

2. When two defenses, one of which is fraud, are set up to an action on a promissory note, if the defendant asks only to submit evidence on the other ■defense, the defense of fraud is waived.

3. The principle of caveat emptor applies to a transaction in-which one party purchases from another property secured at a judicial sale.

4. A defendant to an action on a promissory note cannot set up as a defense that the property in payment of which the note was given, and which was sold at a judicial' sale, was not the subject of a judicial sale. . . •

5. A paper purporting to be -an agreement, or at least a “chose in action” of some 'kind is valid consideration for a-mote.  