
    No. 240
    ISTIN v. JOS. SHANE & FRANK SHANE
    Ohio Appeals, 9th Dist., Summit Co.
    No. 876.
    Decided Nov. 5, 1924.
    495. ERROR—Judgment will be reversed when record shows error of probable prejudice to party complaining.
    1195. TRIAL—Verdict directed for plaintiff thereby depriving defendant of setting up defense is erroneous.
    Published only in Ohio Law Abstract
    Attorneys—Mottinger & Evans for Istin; Meade & Chapman for Jos. Shane and Frank Shane; all of Akron.
   PARDEE, J.

Epitomized Opinion

Action by Jos. Shane and Frank Shane on two promissory notes. The answer alleged no consideration for the execution and delivery of the notes and also set up a general denial. At the end of plaintiff’s evidence, the defendant made a motion for a directed verdict on the grounds that Jos. Shane testified positively that the notes were his and that there was no testimony showing that Frank Shane had any interest in the notes. The motion was overruled. The defendant offered no testimony, and upon motion of the plaintiffs the court directed a verdict for the plaintiffs. Judgment was reversed by the court of appeals, which held:

1. The action of the court deprived the de-defendant of setting up any set-off which he might have had.

2. The error probably did prejudice the defendant and he should not have been deprived of his constitutional right.

Washburn, J., dissenting, held that under the evidence the defendant had no defense to the notes and the record does not disclose that he was probably prejudiced by the error complained of.  