
    PRESUMPTION AS TO HOLDER. OF NEGOTIABLE INSTRUMENT.
    [Circuit Court of Hamilton County.]
    Theresa J. Wehrmann, as Executrix, etc., v. Paul W. Beech et al.
    Decided, January 20, 1906.
    
      Pleading — Presumption as to Ownership of Promissory Notes — Defense of Payment — Testimony under Section 5242 of a Nominal Party — Operation of the Section, how Limited — Charge of Court— Section 3172, Relating ~io Endorsements.
    
    1. The operation of Section 5242, relating to the competency of party to testify, is not limited to transactions with the decedent, but to facts which occurred prior to his death; and testimony as to transactions with the agent of the decedent is therefore incompetent.
    2. The presumption as to a holder of negotiable paper, that he is the owner of it, that he took it for value before maturity, and that he took it in the usual course of trade, is supported by statute as well as by the law merchant.
    Gieeen, J.; Swing, J., and Jelke, P. J., concur.
   Three separate actions were consolidated and tried under the above title, each being founded upon a promissory note or notes. In two of the cases, the only issue well pleaded was whether the notes were duly assigned and transferred to the plaintiff in due course of business for valuable consideration before maturity.

The allegation in the answers, that defendants paid to J. Fred Woltz, the holder and owner of the promissory notes, stated no defense of payment unless he was the holder and owner of the notes, in which case that of itself would be á com- ■ píete defense.

If the jury, in returning a verdict for the defendants, based it upon a finding that the notes were not transferred to Mr. Wehrmann in due 'course, it is not sustained by sufficient evidence, and if, on the other hand, it was based upon a finding that the notes were paid to Mr. Wehrmann, or his agent, it is not supported by any pleading in the case.

In the third case, the defense is that the note was an accommodation paper, and was not assigned or transferred to Mr. Wehrmann before maturity, nor' for any consideration. The testimony is clear that the defendant executed the note as an accommodation, and if Mr. Wehrmann took it after it became due, the defendant would not be liable. The evidence probably sustained the verdict of the jury as to this note, provided the testimony of the witness, Woltz, is competent and was relied on by the jury. It is contended that his testimony was incompetent under Section 5242, Revised Statutes, but he was not a party to any of the original actions, and although made such after the consolidation, no relief was asked against him, nor did he file • any answer. lie was merely a nominal party without any interest in the result, and clearly comes within the case of Bell v. Wilson, 17 O. S., 640, and Baker v. Kellogg, 29 O. S., 663.

The court also admitted over the objection of the plaintiff, the testimony of the defendant, Beech, concerning facts that occurred prior to the death of the testator. It is claimed by counsel for the defendants that this testimony was competent, because he testified to no transactions with Mr. Wehrmann, but only concerning transactions with Adam T. Yoll, his alleged agent, but the operation of the section is not limited to transactions with the party, but to facts which occurred prior to the death of the testator. It seems clear, therefore, that the court erred in receiving his testimony.

The court refused to give the following special charge, which the plaintiff requested be given before the argument to the jury:

“I charge you as a matter of law that the law presumes prima facie in favor of every holder of negotiable paper:
■ “First. That he is the owner of it;
“Second. That he took it for value before maturity; ■
“Third. That he took it in the usual course of trade; and the plaintiff is entitled to recover unless these presumptions of law aré overcome by proof in the case, and the burden of proof is on the defendants. ’ ’

In II Daniels on Negotiable Instruments, 608, it is said:

Joseph B. Kelley, for plaintiff in error.

Cobb, Howard & Bailey, contra.

“The mere possession of a negotiable instrument, produced in evidence by the endorsee, or by the assignee where no indorsement is necessary, imports prima facie that he acquired it bona fide for full value, in the usual course of business, before maturity, and without notice of any circumstance impeaching its validity; and that he is the owner thereof, entitled to recover the full amount against all prior parties. In other words, the production of the instrument and proof that it is genuine (where indeed such proof is necessary), prima facie establishes his case; and he may there rest it. ’ ’
Section 3172q, Revised Statutes, provides as follows:
‘! Except where an endorsement bears t date after the maturity of the instrument, every negotiation is deemed prima facie to have been effected before the instrument was overdue.”

•It appears, therefore, that by statute as well as by the law merchant the presumption embraced within the special charge prevails in favor of the holder of a negotiable instrument.

The court erred in refusing to give the instruction as requested.

Judgment reversed and cause remanded for a new trial.  