Geliebter v. First National Bank

Mr. Presiding Justice Fitch delivered the opinion of the court. 3. Escrows, § 1*—what unnecessary to prove in action by holder. It is not necessary that an escrow holder, who is suing a bank upon certified checks deposited with such escrow holder as earnest money, in'lieu of the actual cash, in the course of the making of a contract for the sale of real estate, aver and prove a consideration, as a prima facie case is made out by offering the checks in evidence and proving the signatures. 4. Escrows, § 12*—who has burden of proving failure of eonsideration. The burden lies upon the defendant, in an action by an escrow holder against a bank upon certified checks, to establish want or failure of consideration by competent evidence. 5. Escrows, § 1*—when evidence shows consideration. A consideration for the giving of checks deposited with plaintiffs as escrow holders and subsequently certified by defendant bank, held established by a contract for the sale of real estate, reciting that the purchaser had deposited with the escrow holder a certain sum as earnest money to be held for the mutual benefit of both parties concerned, and that, if the purchaser should fail to perform his agreement, such earnest money should be retained by the vendor as liquidated damages, in the absence of evidence tending to prove a subsequent failure of consideration.