After plaintiff had made out a prima facie case of execution and delivery of the note and mortgage sued on, defendants, to maintain the issues on their part, offered evidence tending to show want of consideration to support the express promise to pay. The court was of the opinion, and so stated, that the note was negotiable; and, as plaintiff was an innocent purchaser for value and before maturity, the evidence was not admissible, and sustained an objection on the part of plaintiff to its introduction. To this ruling defendants excepted, and have assigned it as error. We think the exception well taken, and that the court erred in excluding the evidence.
It has been held in Cotton v. John Deer Plow Co.,14 Okla. 605, 78 P. 321, and recently decided by this court inClevenger v. Lewis, 20 Okla. 837, 95 P. 230, that a promissory note providing, as does the one sued on, for payment of an attorney's fee, is not negotiable. That being the case, it necessarily follows that it is subject to all the equities existing between the original parties, and that want of consideration is a good defense. Neither can it be said, in the face of the authorities, that the plea of non est factum and want of consideration are inconsistent. Barnes v. Scott,29 Fla. 285, 11 So. 48; Paducah First National Bank v. Wisdom'sEx'rs, 111 Ky. 135, 63 S.W. 461; Mullikin v. Mullikin, 23 S.W. 352, 25 S.W. 598, 15 Ky. Law Rep. 609; Patrick v. BoonvilleGaslight Co., 17 Mo. App. 463; Booco v. Mansfield, 66 Ohio St. 121, 64 N.E. 115; Pavey v. Pavey, 30 Ohio St. 600; 14 Enc. of Pl. Pr. 622. *Page 479
The judgment of the lower court is reversed, and the cause remanded for a new trial.
Williams, C. J., and Dunn and Hayes, JJ., concur; Kane, J., disqualified.