
    Silberman v. National City Bank of Cleveland.
    
      (Decided April 21, 1930.)
    
      Messrs. Klein, Karris & JDieTvm, for plaintiff in error.
    
      Messrs. Gannon, Spieth, Taggart, Spring & Annat, for defendant in error.
   Vickery, P. J.

This action comes into this court on a petition in error to the common pleas court of Cuyahoga county, the purpose being to reverse a judgment that was rendered against Ida Silberman in favor of the National City Bank of Cleveland in the sum of about $40,000. There were two eodefendants with Mrs. Silberman, and, inasmuch as they put in no defenses in the court below, judgments were rendered against them, and they are not prosecuting error; but Mrs. Silberman is prosecuting error, and she alleges several claimed errors why this judgment against her should be reversed.

From the record, arguments of counsel, and the briefs, we learn that there was a concern by the name of the S. Silberman Company that had been doing business with the National City Bank for a number of years, that they had numerous very large financial transactions together, that Mrs. Silberman and the other two defendants in the action below were stockholders and owned stock, and perhaps were officers and directors in the S. Silberman Company, and that prior to the giving of the obligation upon which this snit was brought there had come about a situation whereby the National City Bank was apparently a little worried about its securities, and of the indebtedness of the S. Silberman Company to it, and so it procured this document, upon which this suit was brought, which was in the nature of a guaranty, and made the signers responsible for the obligations of the S. Silberman Company. In consideration of these parties signing this document, further credit by way of loans, discounting of bills, and acceptances was to be allowed the S. Silberman Company, and so, in consideration of this proposed extension of credit, and the giving of further time and a renewal of obligations and the taking of acceptances, and so forth, the defendants in the action below agreed to and did sign the instrument.

At the time this guaranty was signed a much larger sum of money was due from the S. Silberman Company to the bank than appeared at the time of the inception of this suit by the bank against the guarantors. In other words, after the S. Silberman Company had failed, and, I believe, gone into bankruptcy, the bank had reduced to cash its collateral, such as bills receivable and so forth, that had been turned over to it, and had paid all the indebtedness of the S. Silberman Company to itself, except the sum of about $40,000, and it therefore brought action to recover against the guarantors the unpaid balance that was due it, and, as already stated, at the trial of the 'action it recovered a judgment for a sum in the neighborhood of $40,000.

There does not seem to be any dispute that at this time this much money was due. Now it is claimed that there is error in this record prejudicial to the plaintiff in error in several respects. First, that she was induced to sign this guaranty by false and fraudulent representations which were communicated to her by her son, who, as she claims, was repeating to her what he had been instructed to repeat by the managing officer of the bank, who had this matter in charge, and that those statements were, as a matter of fact, false, and were known to be false by the managing officer of the bank, and that she, not knowing anything about them, but believing them to be true, relied upon those statements made by her son, who, it is claimed, had repeated to her only what he had been told to repeat by the officer of the bank, and that, therefore, she was not a voluntary signer of this paper, but signed only through the false representations of the bank, through its special agent for this purpose constituted, to wit, her son, who was delegated, as it is claimed, to report to her what the officers of the bank had said in regard to the indebtedness of the S. Silberman Company to the bank, in that the signing would not enlarge or change her liability at all inasmuch as it had a former guaranty which covered the same questions.

Another claim was that this contract was without consideration; and another was that she, as a matter of fact, did not sign this contract at all, that her mark was put on the paper without her knowledge or consent.

If these things were sustained by the evidence they would constitute a very serious defense to the right of the bank to recover against the plaintiff in error; but the record shows that, while it is true that the son got his mother to sign this document, and took it to the bank, the bank officer was not satisfied and called Mrs. Silberman in fo the bank after the guaranty had been signed by her — if it was signed by her — and the whole matter was put up to her, and she then said that the mark upon the paper was her mark, and, I believe, as the officer claims, the whole transaction was ratified. In addition to this the officer of the bank denies ever having authorized the son to make any representations of any kind; but says that he simply sent the paper out to get the mother’s signature upon it; that when the son brought the paper back with what purported to be her mark upon it, he called her in to make sure and she admitted it was her mark, and that at that time he went over the whole matter with her.

So far as the evidence is concerned, we can only come to the conclusion that the court had the matter before it and had the right to weigh the evidence, and we cannot say that his finding in this respect is so manifestly contrary to the weight of the evidence that a reviewing court would be justified in reversing the judgment.

But there are some other errors, and they are in the nature of errors of law, and one must admit in reading the charge of the court in this case that the court rather misconceived the effect of a written instrument. He stated to the jury that the contract was in writing, and, therefore, it imported a consideration, and he stated that the burden of proof was on the plaintiff in error to show that there was no consideration for the contract. Now we think this was erroneous. There are certain written instruments, of course, which are for the payment of money only, like a promissory note, which do import consideration, and, if the consideration is denied, the plaintiff would still have the burden of proving consideration, but could rest upon the obligation itself. Apparently the learned judge in the court below had this in mind. The burden of proving consideration is not on the defendant where the consideration is-denied, but upon the plaintiff, and there is a great line of authorities to that effect, and so well settled is it that one need not quote them, and the mere fact that a contract is in writing does not change the rule in any way. But now, when one examines this record, one notices that the court did say what it is claimed he said in his charge, yet, as a matter of fact, he held that the plaintiff had the burden of proving that there was a consideration for this contract, and he told the jury in so many words that, if no credits or acceptances were made after the signing of the contract — in other words if the bank had not performed its part of the agreement to extend further credit and receive acceptances and extend payment of bills — there would have been no consideration for this contract, and that was for the plaintiff to prove. So what slip the court might have made with respect to the burden of proof being upon the defendant to show want of consideration was a mere slip of the tongue, for his whole charge contradicts this statement and contravenes any deductions being thus drawn from part of the charge. There can be no question that a contract of this kind must be supported by a sufficient consideration, and tbe mere fact that tbe contract is in -writing would not even import that there was a consideration. It is a matter of proof. In this case the contract set up what the consideration was to be, and we think the evidence bears out the theory that the bank lived up to its agreement and performed its part of the contract. If that was so, then there was a consideration, and this question was fairly submitted to the jury, and, under the charge of the court, the jury must have found that the bank had performed its part of the contract; otherwise it was not entitled to recover.

There was some question, as to certain requests to charge that were made, which were not given. An examination of the record will show that these requests to charge were not made before argument, and one of the propositions, and the only one which was proper, was substantially given in the general charge by the court. The other proposition did not contain a sound proposition of law, and, if it had been tendered, the court would have been justified in refusing to give that request; but inasmuch as they were not given until after argument, and simply came in the way of requests for further or additional instructions to the jury, the rule to be applied to refusal to give a request before argument does not obtain, and we think that the court covered the question fully and there is no error in this respect.

Now the one other error claimed is that the court was wrong in submitting the amount to the jury, in telling them that, if they found for the plaintiff, they should find a certain amount. Well, there is no dispute about that proposition. It was simply done for the purpose of expediting the matter and not letting the jury speculate. The amount that was due on this guaranty was not seriously contested. Consequently, we do not see that there was any error in this respect.

Taking this whole record together, we cannot see any error in it that would warrant the court in disturbing the judgment; that is, the majority of the court cannot. One member of the court thinks that the court’s charge on the question o.f consideration was so erroneous that the judgment should be reversed for that reason. The majority of the court cannot come to this conclusion. The majority of the court think that the judgment should be affirmed, and it therefore will be affirmed.

Judgment affirmed.

Sullivan, J., concurs.

Levine, J.,

dissents on the ground that the court erred in his charge upon the burden of proof relating to the consideration.  