Roberts v. Third National Exchange Bank

CHITTENDEN, J. Epitomized Opinion The defendant bank took judgment against Roberts in the Common Pleas in the sum of $10,000. upon a cognovit note, without service of summons A. motion to set aside the judgment was made averring that it was taken upon a warrant of attorne” for more than the amount due; that the defendani was not indebted upon the note in any amount, and that he had a good and sufficient defense to the note. At the hearing upon the motion the defendant submitted, as an affidavit, an answer he sought to file In the action, but no other evidence. The cour: found that the answer tendered did not contai .-' facts sufficient to constitute a defense, and overruled the motion to vacate the judgment. The answer set up that the bank had loaned ,; certain motor company $10,000, and an addition^' loan of $10,000 was necessary to permit it to continue business and save to the bank the loan already made; that the bank stated to him, Roberts, that n ce would sign a “paper writing,” a loan might be made ostensibly to him, and thus deceive the barn-: ?xam’iner. as to an excessive loan, but it was not ti be considered a note, but merely an accommodation to the bank to conceal the real transaction and permit it to make the loan. The Appellate Court held; 1. That a national bank is not precluded from collecting the full loan, because in excess' of the amount permitted by law and the transaction is neither illegal or void. 2. That a defense sought to be interposed to a note that it was executed to deceive the examiner, so far taints it with illegality as to preclude defendant from interposing it. 3. In order to prove the defense pleaded, it would have to be done by parol evidence, which Would be inadmissible, as tending to vary a written instrument. No claim being made the signature to che note was obtained by a trick or fraud, 52 O. ». 64 followed. 4. That the evidence would not be competent under 8121 GC., authorizing the reception of evidence to show the delivery was conditional or for a special purpose, and not to transfer property in the instrument, as the negotiable instrument law is merely a codification of established law, 214 Fed. 978 followed. 5. The loan of the $10,000 to the motor company constituted a sufficient consideration to sustain the note. The action of the Common Pleas refusing to open the judgment was affirmed.