
    Bank of Buffalo v. Wendel.
    
      Evidence — Weight and sufficiency — To sustain verdict of jury — Negotiable instruments Promissory notes. „
    (No. 15904
    Decided June 10, 1919.)
    Error to the Court of Appeals of Fairfield county.
    A. Wendel was a jeweler at Lancaster, Fairfield county, Ohio. For a period of years he had been engaged in dealing with Boasberg Sons & Company, importers of diamonds, Buffalo, New York.
    Wendel claimed that in'.these dealings with the Boasbergs an arrangement was entered into between them whereby at the several dates of delivery QÍ diamonds by the Boasbergs to Wendel, to be sold by Wendel, as a memorandum of the contract price between them certain notes were from time to time executed and turned over by Wendel to the Boasbergs; that upon the sale of the diamonds by him and his accounting to the Boasbergs the notes would be returned to him. This course of dealing had been followed between the Boasbergs and Wendel through the Bank of Buffalo for some yea.rs.
    The two notes in question, one for $475, under date of December 9, 1914, and one for $359.25, under date of April 15, 1915, came into the possession of the Bank of Buffalo. Subsequently thereto the Bank of Buffalo" brought suit against A. Wendel in the common pleas court of Fairfield county on these two several promissory notes, averring among other things that the notes were “endorsed by the H. Boasberg Sons & Company, over to this plaintiff for a valuable consideration before maturity, and that plaintiff is now the' owner and holder thereof and that by reason thereof there is now due,” etc.
    The defendant answered pleading the agreement heretofore mentioned between him and the Boas-bergs and that the plaintiff bank knew of such arrangement ; that the several notes were transferred to the Bank of Buffalo without any consideration, for the purpose of cheating and defrauding the defendant, all of which the plaintiff well knew.
    There are other allegations to the same effect, denying in substance that the plaintiff was the owner and holder of said notes, particularly that it was such, holder in good faith and in due course. Plaintiff replied by general denial.
    The cause was tried to a-jury and a verdict returned for the defendant. Motion for a new trial was overruled. Error was prosecuted to the court of appeals where the judgment below was affirmed. Error is now prosecuted to this court to reverse the judgments below.
    
      Mr. August W. Mithoff and Messrs. Watson, Stouffer, Davis & Gearheart, for plaintiff in error.
    
      Mr. Brooks E. Shell, for defendant in errors
   By the Court.

There is but one question involved in this record and that is as to whether or not there is any evidence whatsoever to sustain the verdict of the jury. The court of common pleas overruled the motion to direct a verdict in the plaintiff’s favor, and also overruled the motion for a new trial upon the ground that the verdict was not sustained by sufficient evidence.

The court of appeals affirmed the judgment of the court of common pleas, and we are now asked to hold that the courts below were clearly wrong in their judgments in that there is an entire absence of evidence to sustain them. This is the only theory upon which this court under the record could take jurisdiction, because this court by a uniform line of practice will not weigh evidence on a disputed question of fact to determine where the preponderance lies. If there was some evidence, therefore, warranting the submission of the case to the jury, the verdict below must stand affirmed.

An examination of the record shows that the defendant, Wendel, was upon the witness stand; that he testified as to his course of dealing with the Boasbergs, covering a period of years; that in the course of that dealing he frequently executed notes and some of these notes passed through the Bank of Buffalo; and that. either upon sale of the •diamonds and an accounting to the Boasbergs, or a return of the diamonds to said Boasbergs, the notes would be returned to Wendel. That the course of dealing between the Bank of Buffalo and the Boasbergs and their customers was unusual, to say the least, appears from the cross-examination of some of the plaintiff’s witnesses:

“Qv Was any collateral security held with these notes by the bank, or did you take the notes straight ?
“A. The notes were taken straight. We had general collateral.
“Q. What do you mean by general collateral?
“A. We had an arrangement whereby the H. Boasberg Sons & Co. were supposed to keep on deposit a certain percentage of their total line, about 20 per cent, or so.
“Q. ‘Total line/ what do you mean by that?
“A. If we granted them a line of $50,000, they were supposed to keep $10,000 on deposit.
“Q. Were they in the habit of taking up notes that they had one time discounted to you?
“A. Yes, they frequently did that, same as the other customers. They frequently sent checks for that purpose.”

There is other evidence in the record tending to show a special arrangement between the Boas-bergs and their customers, including A. Wendel, of which the Bank of Buffalo had knowledge.

There was some evidence to go to the jury, and, therefore, the judgment below will be affirmed.

Judgment affirmed.

Jones, Matthias, Johnson, Wanamaker and Robinson, JJ., concur.  