Wesley C. Bates filed an action in the Franklin Common Pleas against James W. McDowell upon a promissory note for $500. The trial resulted in favor of McDowell and this is a proceeding in error to reverse the lower court.
Two defenses were set forth in McDowell’s answer, first a general denial and second, lack of consideration, to which no reply was filed. Counsel for McDowell claim that no error will lie because no reply was filed, and cite Ellen v. Thracker, 16 C.C. (ns.) 469.
The Court of Appeals held:
1. If no reply is filed to answer of new matter constituting a defense, but the cause is tried without objection as though such-allegations had been denied a demand for judgment on the pleadings after each party has introduced his evidence, is too- late. Lovell v. Wentworth, 39 OS. 614.
2. The charge of the lower court, that a promissory note prima facie made with consideration but when lack of consideration is set up the burden is on the plaintiff to prove consideration, is correct.
3. Where in a suit on a promissory note the defense is that the note was given or obtained without valuable consideration, the plaintiff has the affirmative of the issue and the burden of proof rests upon him, at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced at the trial. Ginn v. Dolan, 81 OS. 121.
Judgment affirmed.
(Shields & Lemert, JJ., concur.)