Shannon v. Universal Mortgage & Discount Co.

5 Ohio Law. Abs. 366

• Court: Ohio Supreme Court
• Decided: June 1, 1927
• Docket: No. 20231
• Status: Published

Opinion

DAY, J.

1. When a promissory note is by the payee thereof transferred with intent to pass title ■therein, and unqualifiedly indorsed by such payee to evidence the transfer, the contract implied from such indorsement can not, in the absence of fraud or mistake, be varied or explained by parol evidence as to prior or contemporaneous agreement.

2. In an action upon such indorsement, the indorser, for the purpose of defense, may seek, by way of cross-petition, the reformation of such indorsement, upon equitable principles; if the averments of such cross-petition are not sustained by clear and convincing proof, such relief is properly denied. (Farr v. Ricker, 46 Ohio St. 265, approved and followed.)

3. A promise to pay a debt for which the promissor is already legally hound does not constitute a consideration sufficient to support a new contract.

4. In an action where a bona fide holder seeks to recover against an indorser upon a promissory note and the answer pleads the defense of a promise to do a thing which such indorser is already legally bound to perform, such answer does not state a defense and a motion for judgment on the pleadings in favor of the holder of such promissory note is properly granted.

Judgment affirmed.

Kinkade, Robinson, Jones and Matthias, JJ., concur.