Hess v. Gerstlauer

Opinion by Mr. Justice Potter, The affidavit of defense in this case set forth that the note in suit was a renewal of a former note, and that it was executed and delivered by the defendant in blank, with the understanding that the firm name of a partnership should be filled in as payee ; but instead of inserting the firm name, that of one of [12] the individual partners was inserted. It was averred that the defendant had a defense to the claim of the firm, but the grounds of such alleged defense were not in any way specified or set out. Undoubtedly, if this note was in fact intended for •the firm, and if the defendant had set out in his affidavit a good defense as against it, no judgment could properly have been entered against him. But neither in the original nor in the supplemental affidavit is there any statement of facts which would constitute any defense to the action. The mere averment that, as between this plaintiff and the defendant, there was no consideration, is not sufficient, as, under the authority given by the signing of a note in blank, the name of the present payee may have been very properly substituted for that contained in a prior note'. The difficulty with the affidavit is that it sets out no defense against either the present holder or against any other parties who may, as is alleged, be the real owners of the note. The assignments of error are overruled and the judgment is •affirmed.