
    Fiedler v. Bigelow.
    
      Negotiable instruments — Want or failure of consideration, properly pleaded, a good defense — Burden of proof on maker, when — Cognovit note given as purchase price for automobile~~Without consideration where automobile title not transferred by bill of sale.
    
    1. Defendant, by answer setting up want of consideration of cognovit note sued on, had burden of proof thereof.
    2. In suit between parties on a cognovit note, either a want of, or failure of, consideration is a good defense, if properly pleaded.
    3. A cognovit note given for the price of an automobile was without consideration, where there was no transfer of title to the automobile by bill of sale from payee to the maker.
    (Decided November 8, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Mr. J. G. Meald, for plaintiff in error.
    
      Mr. H. B. Scobie, for defendant in error.
   Vickery, J.

This action comes into this court on a petition in error to the municipal court of the city of Cleveland. In the court below Bigelow was plaintiff and brought his suit against Fiedler to recover a balance due on a cognovit note amounting to some $200. A judgment was obtained, and error to reverse said judgment is prosecuted to this court.

The question arose in the court below, as follows: Bigelow was the manager or owner of an automobile service station, having certain Chevrolet automobiles for sale, or at least having the agency therefor, and Fiedler was employed by him, and had been for some length of time.

The record is very brief, bnt it shows that Fiedler asked for more compensation and that Bigelow told him he was unable to pay him higher wages, but wanted him to continue working for him, and made a proposition the effect of which was that he would sell Fiedler a Chevrolet automobile at the exact cost to him, that Fiedler might sell the automobile within three months and thus make a profit upon it, and in that way have his wages increased, and that at the end of three months he would give him a new automobile on the same terms and in this way, without increasing wages, Fiedler would have additional compensation.

Both parties testified that this was the agreement, and there is no conflict in the evidence.

On the completion of this agreement Bigelow turned over to Fiedler the Chevrolet automobile, for which Fiedler gave him a cognovit note for $600, the purchase price. No bill of sale was given by Bigelow, nor was there ever a bill of sale, although the statute was then in force and effect which compelled the giving of a bill of sale in order to show the transfer of title.

Fiedler continued to work for Bigelow, and, as he alleges, because the bill of sale was not given to him, he was unable to sell the automobile. He further alleges that he demanded at several times a bill' of sale, which Bigelow declined to give. Bigelow, however, denies this, or at least says he does not remember of ever having been asked for a bill of sale. However that may be, when the note became due, the automobile not having been sold, a new note was given as a renewal for the old, and before that note became due tbe relationship be- , tween Bigelow and Fiedler bad been severed and Fiedler no longer worked for Bigelow. He left tbe car in tbe possession of Bigelow, whereupon Bigelow as owner of tbe car took possession of it and sold it, and gave a bill of sale, deciding that be was tbe owner of tbe car, and applied tbe purchase price received for tbe car in this manner, about $400, upon tbe note, and then took a judgment upon the cognovit note for the balance.

A motion was made to suspend this judgment and a defense was tendered. Tbe court having jurisdiction over tbe matter vacated or suspended the judgment, and permitted an answer to be filed. Tbe answer set up want of consideration, based upon tbe fact that there bad been no transfer of title for the reason that no bill of sale was given. On tbe trial of the action, tbe court found in favor of plaintiff and rendered a judgment against Fiedler, and it is to reverse that judgment that this action is brought here, tbe sole defense being the failure or want of consideration.

Tbe burden of proof was placed upon tbe defendant, who held tbe burden throughout, and tbe claim is made that tbe judgment is contrary to the weight of the evidence. All tbe evidence showed that there was no consideration, or, at least, that there was a failure of consideration for this note.

It must be remembered that in tbe suit between the parties either a want of consideration or a failure of consideration would be a good defense, if properly pleaded, and whether it was want of consideration or failure of consideration could only affect tbe burden of proof.

Tbe sole question argued before this court, and the only question we considered, is that, inasmuch as this note was given for the sale of an automobile and there was no transfer of title in any way, shape, or manner, the note was given without consideration.

There are at least two cases in our Supreme Court which have held that in order to transfer title to an automobile there must be a bill of sale; that under the statute authorizing a bill of sale (Section 6310-3 et seq., General Code), the bill was meant to operate like the transfer of title to real estate; that until the bill of sale was given the title remained in the vendor. There are one or two cases decided by the Court of Appeals which hint to the contrary, but this was before the Supreme Court rendered its two decisions.

We think under the present state of the law that unless a bill of sale is given for an automobile, the title remains in the vendor. In the instant case we are well fortified in that position by the fact that Bigelow'without having a retransfer of title to him sold this automobile as his own car and gave a bill of sale therefor. Under the decision of the Supreme Court he had a perfect right to do this, the title never having passed from him. That being so, then it must follow that the note upon which suit was brought is absolutely without consideration, so far as appears from this record.

The record shows that this automobile was driven something like 7,000 miles and that possibly Bigelow might have a claim against Fiedler for rental for use of the car, but the note was not given for that, and the suit was not planted upon that sort of a case. It must be remembered that from the record both sides agreed that this relation between them, by virtue of this so-called sale of the automobile, was to enable Fiedler to get better wages, and in that respect there was a total failure of consideration, because he got no more wages and did not sell the car. Therefore we think the title never passed from Bigelow and the note was without consideration, or that the consideration failed because Bigelow had not complied with his contract in letting Fiedler sell the car and make a profit in that way.

The judgment therefore is without evidence to sustain it and must be reversed, and, there being no evidence to support the plaintiff’s contention, judgment is rendered for the plaintiff in error, the judgment that should have been rendered by the court below.

Judgment reversed a/nd judgment for plaintiff in error.

Levine, P. J., and Sullivan, J., concur.  