
    Booco v. Mansfield.
    
      Action on promissory note — Denial of execution — Not inconsistent with claim of nonconsideration — Pleadings.
    1. In an action on a promissory note, a denial of its execution and delivery is consistent with a separate ground of defense, that the note is without consideration.
    ■ 2. When both defenses are made, and the plea of want of consideration is in general terms, it is error for the court to require the defendant to make the same definite and certain “by setting forth the facts and circumstances connected with the note which render it without consideration,” and the error is continued in striking the defense from the answer for noncompliance with such order. The ease of Chamberlain v. Railway Co., 15 Ohio St., 225, distinguished.
    (Decided April 22, 1902.)
    Error to the Circuit Court of Fayette county.
    The defendant in error, Minnie Mansfield, sued in the court of common pleas to recover of plaintiff in error, on a promissory note which reads as follows:
    
      “April 11, 1894, Jeffersonville, Ohio.
    “One day after date I promise to pay to Minnie Mansfield, five hundred dollars.
    “|saac S. Booco.”
    The petition on the note is in the usual short form, and prayed judgment for the amount of the note and six per centum interest from its date.
    The defendant, Booco, answered the petition, setting up two grounds of defense, which are:
    “First defense — That said defendant did not make and deliver the promissory note in the petition described, and that the defendant denies each and every allegation contained therein.
    “Second defense — The said defendant for a second defense to the said petition says: that there is not now, nor was there at any time any consideration whatever for the said pretended note set out and described in the said plaintiff’s petition, and the said defendant therefore avers that the said pretended note is wholly without any consideration therefor, and that the same is void.”
    The plaintiff below filed her motion for an order of the court requiring the defendant to make the first and second defenses more definite and certain, which motion the court overruled as to the first defense, but as to the second defense sustained said motion, and required the defendant to set forth the facts and circumstances connected with said note which rendered it without consideration and void as claimed by him. The defendant excepted to this order of the court, and the defendant not desiring leave to amend said second defense and not amending the same as ordered, the court, struck it from the answer, and to this order the defendant excepted.
    
      The case went to trial by jury on the first defense, and the plaintiff obtained a verdict for the amount demanded in the petition, for which the court rendered judgment, and overruled the motion of defendant for a new trial. The defendant prosecuted error in the circuit court where the judgment of the common pleas court was affirmed. The case comes to this court on error, but the principal error relied on for reversal is the order of the trial court requiring the second, defense to be made certain and definite as stated in the order, and striking the defense from the answer for noncompliance therewith.
    
      Messrs, Gregg, Patton & Gregg, for plaintiff in error.
    The defendant has the right to put in issue all the elements that go to make a valid instrument, to-wit: the execution, delivery and consideration.
    The execution and delivery being denied, the question of consideration becomes important to prove or disprove the execution and delivery and to take this question from the case therefore bar the introduction of testimony thereon, affected a substantial right of the defendant.
    The court in passing on a question of this character should take into consideration the facts as pleaded, and determine it in the light of the particular facts in the case, and should consider the allegations of the first defense.
    The defense relied on being forgery there could be no facts or circumstances^ within the defendant’s knowledge to enable him to comply with the order of the court. All he could do would be to allege it in general terms as was done in this ease. Therefore, it would be impossible to comply with the order of the court.
    The form of answer adopted in this case was taken from the case of Pavey v. Pavey, 30 Ohio St., 600, where it was held good.
    In the cases of Pavey v. Pavey, 30 Ohio St., 600, and Clark v. Clark, 8 Circ. Dec., 752; 16 C. C. R., 103, the execution and delivery of the note in question was admitted by the defendant. And the execution and delivery being admitted, there must be facts within the defendant’s knowledge that show a failure or want of consideration, if there is in fact a want or failure of consideration.
    The pleading in question did not come within the provisions of Sec. 5088, Rev. Stat. The precise nature of the defense was pleaded, to-wit: “No consideration.” The plaintiff was apprised of the character of the defense.
    Between the original parties to a promissory note, the facts are as much within the knowledge of the payee as the maker; and such payee could not be taken by surprise. 6 Ency. Pl. & Pr., 274.
    A ruling of a court ought never to be upheld where' it will result in injustice and hardship on a party to a suit when a contrary ruling could not prejudice the opposite party. It is contrary to the letter and the spirit of our system of jurisprudence.
    The distinction between pleading want and failure of consideration that we have insisted on in this case has been recognized by the courts of many of the states. 4 Ency. Pl. & Pr., 947; Kernodle v. Hunt, 4 Blackf., 57; Webster v. Parker, 7 Ind., 185; Billan v. Hercklebrath, 23 Ind., 71; Wheelock v. Barney, 27 Ind., 462; Beaver v. Hartville University, 34 Ind., 245; Mookler v. Lewis, 40 Ind., 1; 3 Ala., 316; 5 Ala., 346; 7 Ala., 129; Milligan v. Pollard, 112 Ala., 465; 6 Ark., 412; 10 Ark., 273; 11 Ark., 307; 5 Ark., 345; 8 Ark., 133; 34 Ark., 169; Gulf, C. & S. F. Ry. v. Harriet, 15 S. W. Rep., 556; Patterson v. Gile, 1 Colo., 200; Munro v. King, 3 Colo., 238; 64 Ill., 366; 97 Ill., 642; Couchman v. Thomas, 3 Ky., 261; Commonwealth v. Clark, 4 Ky., 531; 9 Miss., 489; 42 Miss., 276; Miller v. Brumbaugh, 7 Kan., 343; Brown v. Ready, 20 S. W. Rep., 1036; Foren v. Dealey, 4 Ore., 92; 4 Ency. Pl. & Pr., 950.
    The court erred in ordering the second defense ¡stricken from the defendant’s answer. Sections 5087, •5071 and 5082, Rev. Stat.
    It is only redundant, irrelevant or scurrilous matter that the court has power to order stricken from a pleading and there can be no claim made that this pleading was of that character. And the fact the court had sustained a motion to make more definite and certain cannot change the rule. Long v. Newhouse, 57 Ohio St., 348.
    The Supreme Court has also held that the adoption of our code has broadened the practice pertaining to the administration of justice as it existed before the code. Peter v. Foundry & Mach. Co., 53 Ohio St., 534.
    The court also erred in admitting the note in evidence and overruling the demurrer of defendant to plaintiff’s evidence.
    There was no evidence whatever offered to prove the defendant Booco ever executed the note in question.
    Before the note would be competent evidence there must be proof offered of the execution and delivery.
    
      The execution being proved, the possession of the payee of the note might be sufficient evidence of the delivery; but there being no proof that Booco signed the note ór authorized any one else to sign it, he could only be liable by having adopted the instrument as. his under circumstances that would create an estoppel from denying the adoption.
    In the hands of a bona fide holder for value, the adoption of the note would be binding, but as between the original parties, where no one is misled, the authorities are divided as to the effect of the adoption of a forged signature, some holding the purported maker liable; others, the contrary rule. Tiedeman Com. Paper, 399; 2 Daniel Neg. Instruments, 360.
    And the weight of authority and the reason is. with the latter rule.
    The note sued on was non-negotiable and did not. contain the words “value received” or any words of similar purport. It would not come within the rule of instruments that' import a consideration and a. good or valuable consideration must be proved.
    The courts hold that the words “value received”' over the signature of the maker is an acknowledgment of a consideration, and prima facie evidence, which is sufficient to put the burden on the defendant, to show there was no consideration. But no such rule applies where these words are omitted and the note is non-negotiable. 14 Ency. Pl. & Pr., 482; 2 Greenleaf Ev., 152; Tiedeman Com. Paper, 152;, Burnham v. Allen, 1 Gray, 496; 51 Me., 191; Hemmenway v. Hickes, 4 Pick. (Mass.), 497; Prindle v. Caruthers, 15 N.Y., 425; Walrad v. Petrie, 4 Wend. (N. Y.), 575; Spear v. Downing, 22 How. Pr. (Supreme Ct. N. Y.), 30; Spear v. Downing, 34 Barb. (N. Y.), 522; DeForest v. Frary, 6 Cow. (N. Y.), 151; Lansing v. McKillip, 3 Cai. Rep. (N. Y.), 286; Shee v. Megargee, 4 Phila. (Pa.), 75; 17 Leg. Int. (Pa.), 20; 2 McCord L. (S. Car.), 218; 3 McCord L. (S. Car.), 195; Brown v. Parks, 8 Humphrey (Tenn.), 294; Read v. Wheeler, 2 Yerg. (Tenn.), 50; Shelton v. Bruce, 9 Yerg. (Tenn.), 24; Summers v. Sanders, 28 S. W. Rep., 1038; 1 Parson’s Notes and Bills, 226; Torrey v. Baker, 1 Allen, 121; 2 Leigh, 198; 15 Gratt., 165; Bristol v. Warner, 19 Conn., 7; Betts v. Gas & Water Co., 97 Pa. St., 367; 64 Vt., 601; Edgerton v. Edgerton, 8 Conn., 6; Birclebach v. Wilkins, 22 Pa. St., 26.
    The case in Spear v. Downing, 22 Howard Pr. (N. Y.), 30, which was affirmed, 34 Barb. (N. Y.), 522, was decided under a similar statute to Sec. 5086 under our code.
    The rules adopted by the law merchant that promissory notes and bills of exchange are the representatives of and intended to take the place of, and circulate as money, can have no application to an instrument such as the one sued on, and the holding that such instruments import a consideration therefore fails.
    The mere fact of the delivery of what purported to* be a promissory note would not bind the promisor, unless there was some consideration for the promise. A gift of one’s own note is a delivery of a promise only and not the thing promised. Hamor v. Moore, 8 Ohio St., 239; Starr v. Starr, 9 Ohio St., 74; Swan’s Treatise, 518.
    The allegations of the first defense in the answer consisted of new matter within the meaning of Sec. 5079, Rev. Stat. Hauser v. Metzger, 1 C. S. C., 164; Bank v. Lloyd, 18 Ohio St., 355.
    Not being denied by reply, the facts therein alleged stood admitted by section 5081. Fewster v. Goddard, 25 Ohio St., 276.
    Under the pleadings the defendant was entitled to judgment and the demurrer to the evidence was equivalent to a motion for judgment, and the action of the court in admitting the note in evidence against defendant’s objection and in overruling the demurrer was clearly error.
    
      Messrs. Van Demin & Chaffin, for defendant in error.
    Brief of Mr. Frank A. Chaffin.
    
    Complaint is made by plaintiff in error that the court erred in ruling that be should make bis answer more definite and certain, and on bis refusal to do so, it was error “to strike it from the files.”
    This we think is the only question in the case that might be open to argument, and this, we claim, has been settled by the court in the case of Chamberlain v.Railway Co., 15 Ohio St., 225, and followed by the circuit court in Clark v. Clark, 8 Circ. Dec., 752; 16 C. C. R., 103.
    The court will observe that the defendant, in bis answer, undertook to plead two separate and distinct defenses.
    The first entirely different from the second. The second in no way containing any part of the first, either by incorporating its language, or by reference, as was done in Hammond v. Earle, 58 How. Pr., 426, 1 Kinkead Code, Pl. & Pr., Secs. 78 and 20. Consequently both must be complete in and of themselves. Kinkead P. & P., p. 84; Reid v. Huston, 55 Ind., 173; Bank v. Green, 33 Ia., 140. It is but begging the question to say that the allegations in the first defense aids the second.
    We submit that the first defense does not plead forgery — even if defendant had incorporated its allegation in his second defense. We admit it bears the ear-marks of having been drawn to suit the occasion — and reads “that said defendant did not make and deliver the promissory note,” etc.
    
      He might not have made it, and yet delivered it. He might not have delivered it and yet made it. In either event it would not be forgery, and if there was any error in this case, we think it was committed when the court overruled the motion of plaintiff to said first defense.
    Had defendant denied “that he made or delivered,” or had he stated in his answer “that.he neither made, nor delivered said note,” then his first defense would have been well pleaded, and in accordance with the case of Winchell v. Crider, 29 Ohio St., 480; Kinkead Form, 337.
    Another claim is made, viz.: “That the court has no power to strike out of the pleading, any matter except such as is specified in Ohio Rev. Stat., Sec. 5087.”
    If this is true, then not only the lower courts, but the Supreme Courts as well, have • been erring for years. Commissioners v. Hoaglin, 5 Kan., 558.
    To the answer to argument of the plaintiff in error that “the allegations of the first defense consisted of new matter and there being no reply filed, the facts; under the code, therein stated, stand admitted.” We say there” was no necessity for a reply. But for sake of argument, ádmit the answer set up new matter requiring one. The defendant did not complain in the lower court; did not ask for judgment on the pleadings, but proceeded to try the case, and after the jury decided that he should pay, and the case had reached the circuit court, he then complained because no reply had been filed. ' If defendant had actually pleaded new matter, and plaintiff refused to reply, he might have demanded judgment on the pleadings, and then if the court had refused that judgment and forced him to trial, there might have been some ground for dissatisfaction. But such is not the case here, and under the circumstances, it looks as though he was simply “laying up for the second heat,” not knowing that Judge Okey, as far back as 1883, had “dropped the flag” on such proceedings and made it a matter of record in the case of Lovell v. Wentworth, 39 Ohio St., 614.
    And in so doing only followed Woodward v. Sloan, 27 Ohio St., 592; Randall v. Turner, 17 Ohio St., 262; Fretz v. Stover, 89 U. S. (22 Wall.), 198; Clements v. Moore, 73 U. S. (6 Wall.), 299; White v. Richmond, 16 Ohio, 5.
    But we claim no reply was necessary. The question made, because the note was non-negotiable, has been settled by Dugan v. Campbell, 1 Ohio, 115; Ring v. Foster, 6 Ohio, 279, and Howe v. Hartness, 11 Ohio St., 449; Leonard v. Sweetzer, 16 Ohio, 1.
    On the question of consideration, we are compelled to hold different views from those expressed by counsel for Booco, and insist there is quite a difference between a promissory note and a book account.
    The former is signed t>y the debtor, and thereby acknowledged, and a written promise to pay it. The latter is made up entirely by the creditor, and is only his memoranda against the debtor.
    
      It can make no difference, whether this note was negotiable or not, whether it contained the words “value received” or not, the defense relied on was forgery. It was a promissory note, even though not negotiable, nor containing the words “value received,” and the case of Dalrymple v. Wyker, 60 Ohio St., 108, can be of no benefit to their side of the contention. In fact it decides that “consideration” is presumed in promissory notes.
    Was this a promissory note?
    It is useless to cite authorities. There is none but holds that all that is required is “a written promise to pay, to a person named, a certain sum of money, absolutely at a time therein named!” 2 Blackstone, 467; 3 Kent, 74; Chitty, 585; 1 Daniel, 36; Story, Sec. 1; Bouvier Law Dic.
    Some authorities go so far as to say, that the time of payment need not be definitely fixed. Randolph, Secs. 7,178; Byles, 87; Chitty, 79-184; 1 Daniel, 117; 1 Parsons, 193; Story, Sec. 63; Story on Prom. Notes, Sec. 51. And dozens of other cases and authorities cited under Sec. 178.
    All commercial paper implies a consideration, though none be expressed by these or other words., Randolph, Secs. 178-180; 1 Edwards, Sec. 202; Story on Bills, Sec. 63; Mandeville v. Welsh, 18 U. S. (5 Wheat.), 277, and a long line of cases cited under note: 3 to Sec. 178, Randolph, and note 1 to Sec. 180.
    The rule in question is very tersely expressed in. 1 Parsons on Contracts, 249: Usually bills and notes express the consideration by saying, “for value received ;” but when this is not expressed, it is implied by law, both as to the makers and acceptors, and this presumption must be rebutted by evidence, if the defense rests on want of consideration. Citing Hatch v. Trayes, 11 A. & E., 702; Grant v. De Costa, 3 M. & S., 35; Benjamin v. Tillman, 2 McLean, 213; Briston v. Warner, 19 Conn., 7 ; Popewell v. Wilson, 1 Stra., 264; Lines v. Smith, 4 Fla., 47; Clark v. Shneider, 17 Mo., 295; Austin v. Blue, 6 Mo., 265.
    Negotiability is no necessary part of the form or substance of a promissory note. Barchell v. Slooch, 2 Ld. Raym., 1545; Smith v. Kendall, 6 T. R., 123; Kimball v. Huntington, 10 Wend., 675; Middlesex v. Davis, 3 Metc., 133; Arnold v. Sprague, 34 Vt., 402; Bigelow Bills and Notes (2 ed.), 22 and 23; Lines v. Smith, 4 Fla., 47; Hubble v. Fogartie, 3 Rich. (S. C.), 413; Hunley v. Long, 5 Port. (Ala.), 154; Thompson v. Armstrong, 5 Ala., 383; Cook v. Gray, Hempst., 84; Ware v. Kelley, 22 Ark., 441; Townsend v. Derby, 3 Metc., 363; Kinsman v. Birdsall, 2 E. D. Smith, 395; McArthur v. McLean, 6 Jones, 475; Labadie v. Chateau, 37 Mo., 413; 2 Am. & Eng. Ency. Law (1 ed.), 339, subject Bills and Notes; Delano v. Bartlett, 6 Cush., 364; Hill v. Todd, 29 Ill., 101; Sawyer v. Vaughn, 25 Me., 337.
   Price, J.

The first defense contained in the answer, when stripped of unnecessary verbiage, is a denial of the execution and delivery of the note —the subject of the action. And the second defense pleads generally, that the alleged instrument is without any consideration to support it. This being its character the plaintiff below, by motion, asked the court to require the defendant to make this ground of his defense definite and certain “by setting forth the facts and circumstances connected with said note which render it'without consideration and void,” and “by setting forth a complete statement of facts upon which said second defense is based.”

This motion was sustained and thereby the defendant was required to so reform and amend the plea, as to set out “the facts and circumstances connected with said note which render it without consideration and void,” and “to set out therein a complete statement of the facts upon which said second defense is based.”

The defendant did not so amend, and for want of compliance with the order, the defense was stricken from the answer.

Was this error? is the only important question before us. There can be no doubt, that the plea of want of consideration for a note is entirely consistent with a denial of its execution and' delivery, for under the liberal provisions of our code of practice, the defendant may set forth in his answer as many grounds of defense as he may have, whether they are legal or equitable in character, subject to the limitation, that such several defenses must be consistent with each other. Revised Statutes, Sec. 5067. This court held in Pavey v. Pavey, 30 Ohio St., 600, that, in an action on a note, the defendant may plead a denial of its execution and that there was no consideration therefor, and that it is error in such case to require the defendant to elect upon which of the two defenses he will proceed to trial.

If the note is not genuine, as alleged in the-first ground, it had no consideration as alleged in the second ground of defense, and we think that the defendant had not only the right to these consistent defenses, but he had the right to be consistent in his •evidence to support them. So, if the instrument sued on is not genuine, what facts and circumstances connected with it, could he set out? Indeed, it is difficult .to see how the defendant could have complied with the order made in the case, without abandoning his first defense, or at least, very greatly compromising it. If he should set out “facts and circumstances connected with the note which renders it without consideration,” the plea so framed might at once be construed as admitting the execution of the instrument, and the very compliance with the order, if it could be complied with, would present an apparent inconsistency between the two defenses. And why should statements of facts be required in this case? The suit is between the payee and the alleged maker of the note. It lacks the usual words “for value received,” and is not negotiable in form. Every fact surrounding its execution is, or could be, as well known to the plaintiff as to the defendant. If the note is not genuine, her knowledge about its origin is far superior to his. On the other hand, if the defendant made and delivered it, the plaintiff would not be .a stranger to “the facts and circumstances” connected with its execution; and we think there is no necessity for the enforcement of the strict rule laid down by the trial court.

We do not intend to unduly circumscribe the discretion and control which the court has over the filing and reformation of pleadings, but to say, that owing to the character of the two grounds of defense, the court erred in sustaining the motion complained of and in striking the defense from the answer.

The case of Chamberlain v. Railway Co., 15 Ohio St., 225, is cited to justify the action of the lower •court. There were several questions involved in that case, and the least of all was, the effect of going to trial without objection, where one of the defenses to a promissory note is a plea in general terms, that it is wdiolly without consideration; and this court there decided that, if the plaintiff, without requiring a statement of the facts on which the defense is based, joins issue, any evidence is admissible on the trial, that tends to impeach or sustain the consideration. And the distinguished judge announcing the opinion, referring to the general terms of the plea, said: “this the plaintiff might have required to be made more definite, by a statement of the facts upon which the defense was based; but he waived this right and joined issue. * *

And further examination of that case shows, that the defendant admitted the execution of the note in suit. He had subscribed to the stock of the railroad company, and had paid a number of installments thereon, and gave the note sued on in settlement of the other assessments, and among other defenses, we need not mention here, was the general plea that the note was without consideration. The feature of that case which readily distinguishes it from the case at bar, is that there the note was genuine, while here its execution is denied. It is the ordinary application of the rule that the syllabus and opinion in a case should be considered in the light of its issues and facts.

It is our judgment that the court erred in sustaining the plaintiff’s motion to the second defense, and that the error was continued in striking it from the answer, for which error the judgments of the circuit court and the court of common pleas are reversed, ■and the case is remanded for new trial.

Judgment reversed.

Williams, O. J., Burket, Spear, Davis and Shauck, JJ., concur.  