Shemonia v. Verda

157 N.E. 717, 24 Ohio App. 246, 5 Ohio Law. Abs. 310, 1927 Ohio App. LEXIS 541

• Court: Ohio Court of Appeals
• Decided: April 19, 1927
• Docket: 398
• Status: Published

Opinion

WASHBURN, P. J.

Petros Shemonia sued Vassili Verda in the Lorain Common Pleas on the following written instrument signed by Verda.

“Cleveland, Ohio. January 2, 1924.

“I borrowed money from Petros Shemonia,. the sum of five hundred ($500) with four per cent interest. The borrowed money ought to be paid within four months from above date.

(Signed) Vassili Malik Verda.

Witnesses: Firoske Verda.”

There was an indorsement on said instrument: “8-20-26, paid $10 hereon, Rudin & Keech ,Attys.”

The question was raised in the lower court on motion and the court determined that said writing- was not an “instrument for the unconditional payment of money only,” within the meaning of 11334 GC. and struck from plaintiff’s petition the allegations setting forth and referring to said instrument. Plaintiff not desiring to plead further, final judgment was rendered for the defendant. Error was prosecuted and' the Court of Appeals held:

1. The phrase “an instrument for the unconditional payment of money only” compre- hcnds a writing' which does not have all the elements of a non-negotiable promissory n'ote; for instance, a signed written instrument acknowledging a debt of a. certain amount due to a particular party, which does not contain an express promise to pay, the promise being implied in law from the acknowledgment of the indebtedness.

Attorneys — Rudin & Keech for Shemonia; Findley & Myers for Verda; all of Elyria.

2. However that may be, there can be no question but that a signed writing which does contain the essential elements of a promissory note, although same is not drawn to be negotiable, is an instrument of unconditional payment of money only which may be sued upon under favor of 11384 GC.

3. Acknowledgment by the defendant that he borrowed the money from the plaintiff and ought to repay it amounts, in law, to a promise to pay it, when considered in connection with the whole writing that was signed by the defendant, which specified the amount, due date and rate of interest, and therefore the instrument in question does contain all of the elements of a non-negotiable promissory note and is an instrument for the unconditional payment of money only, within 11334 GC.

Judgment reversed and cause remanded.

(Funk & Pardee, JJ., concur.)