Margeson v. Kellar

21 Ohio C.C. Dec. 626

Opinion

SMITH, J.

Plaintiff in error’s action below declared upon a promissory note. Defendant’s answer sets up a want of consideration for the same.

The case was tried upon the theory that the note was paid by defendant in error by way of usurious interest paid thereon, and the court in its charge to the jury stated that payment in this matter could be proven by defendant in error.

Want of consideration for a note and payment of the same are two^ separate, distinct defenses, and if defendant in error relied upon payment to discharge his liability it was necessary that it should be pleaded. Lord v. Graveson, 26 O. C. C. 371 (4 N. S. 268). As this was not dohe, the court therefore erred in admitting evidence relative thereto, and in-charging the jury in that respect.

Hpon the whole record we do not feel that this court would be justified in entering judgment for plaintiff in error. The judgment of the court will therefore be reversed and a new trial granted, so that upon proper pleadings the matter in controversy can be determined as the justice of the case would seem to demand.

Giffen and Swing, JJ., concur.