Harper v. International Harvester Co.

Wade, O. J. 1. The defendant in the lower court made a solemn admission in judicio as to the execution of the note sued upon and its ownership by the plaintiff, and voluntarily assumed the burden of proving his sole remaining defense, — to wit, failure of consideration. This admission was binding on him, notwithstanding testimony (which, apparently through some oversight, was admitted without objection) to the effect that the title to the note which formed the basis of the purchase-money attachment was not in fact vested in the plaintiff, and notwithstanding the traverse to the attachment affidavit previously filed by the defendant. 2. The admission by the defendant in open court as to the ownership of the note which evidenced the purchase-money indebtedness being of binding force and effect, and there being" some testimony to support the [820] verdict against the plea of failure of consideration, the trial judge did not err in overruling the motion for a new trial. Decided March 12, 1918. Attachment; from Morgan superior court — Judge Park. November 8, 1917. M. 0. Few, for plaintiff in error. Middlebroohs & Pennington, contra. Judgment affirmed. Jenkins and Luke, JJ., concur.