#### Marriott et al. *v.*Hawk et al.

*Supreme Court*— Insufficient *record for review*— No *bill of exceptions or transcript of evidence in Court of Appeals*— Ne*gotiable instruments*— Payments *by malcer to original payee after assignment*— Presumption *that payee agent of transferee. .*

(No. 18317

Decided October 28, 1924.)

Error to the Court of Appeals of Mahoning county.

This action was brought ag’ainst Otis E. Hawk and Thomas A. Atwood,- the recorder of Mahoning county, praying for the cancellation of a mortgage and the notes thereby secured. The plaintiffs alleged that they are the -owners of a certain lot in Youngstown, Ohio; that in 1919 they purchased this property and assumed a mortgage thereon securing 5 notes; that they had fully paid the interest on the obligation and had made payments upon the principal so that there remained due and unpaid about $333.83 of the principal sum. Plaintiffs deposited the said sum of $333.83 with the clerk of the court at the time they filed the petition, as payment of the balance due. The notes in question recited “Principal and interest payable at the office of O. E. Hawk.”

The disputed issue in this case is between plaintiffs and C. H. Mason, and Carrie M. King, defendants, who became such on their own motion by leave of court. These defendants, Mason and King, filed an answer and cross-petition alleging that in March, 1917, George E. Davis and Margaret *286Davis, Ms wife, the then, owners of the property, executed and delivered to O. E. Hawk the 5 proxmssory notes in question, secured by a mortgage on the premises described in the petition; that immediately after the execution of the notes and before the maturity thereof, said notes and mortgage were assigned and transferred to these answering defendants; and that afterwards said George E. Davis and Margaret Davis conveyed the prexMses to the plaintiffs, who assximed the payment of said notes and mortgage. These defendants further alleged that the notes and mortgage had been in their possession since the assignment, transfer, and delivery of the notes and mortgage to them; that no payments had been made on the principal of said notes to themselves, nor to any one authorized to receive payment of the same for them, or either of them, but that the interest thereon had been paid to the 15th day of December, 1921. Defendants alleged that the conditions of said mortgage had been broken, and prayed for judgment upon the notes and for foreclosure.

The plaintiffs filed a reply to the answer and an answer to the cross-petition, which answer to cross-petition they later amended. In the amended pleading the plaintiffs alleged that the defendants had estopped themselves to claim nonpayment of the notes in that “these defendants knew that these plaintiffs were expressly directed to pay the notes against their premises to O. E. Hawk, yet these defendants did nothing either by notification, verbal or written, to notify these plaintiffs of their ownership of any such claim *287notes and wholly and totally neglected, failed and omitted to place any such assignment of said notes and mortgage as they might have upon record so that these plaintiffs could in that way protect themselves, and in that these defendants, by their own pleaded admission, for .5 years received and accepted the interest collected on such notes as they claim to have, from the said O. E. Hawk, and in that these said defendants at no time notified these plaintiffs of the said notes having fallen due, although the same were '2 years past due, nor did they furnish these plaintiffs with their address and instruction to pay said past due notes to them, all the time knowing that these plaintiffs were directly instructed to pay said notes, interest, and principal, to the said Otis E. Hawk; that all of this concealment, gross failure, and neglect in fact constitute and amount to fraud of such extent that these defendants are precluded from relief against these plaintiffs as aforesaid.”

No reply was filed to the plaintiffs’ answer to the cross-petition.

In the court of common pleas judgment was rendered in favor of the cross-petitioners, and foreclosure ordered. The case came on for trial on appeal in the Court of Appeals, and was heard on the transcript of the evidence in the court below and upon some additional evidence. The Court of Appeals found “that under the testimony in this case there could not have been an agency created in the defendant O. E, Hawk by the defendants, Mason and King; that he therefore had no authority from the defendants, Mason and King, to receive payments on said mortgage obli*288gation;” and entered judgment for the defendants Mason and King, and decreed foreclosure.

The case comes into this court upon allowance of a motion to certify the record.

*Mr. W. L. Countryman,*for plaintiffs in error.

*Mr. John B. Morgan,*for defendants in error.

By the Court.

We shall first inquire whether the court has any evidence before' it to review. The defendants in error claim that there was no bill of exceptions taken in the Court of Appeals and none filed in this court. If such is the case, the court can consider no errors predicated on the alleged bill of exceptions. Section 11564, General Code; *Townsend*v. *Harrison,*58 Ohio St., 398, 50 N. E., 985.

The contention of defendants in error upon this point is borne out by the printed record. The bill of exceptions, so called, is the transcript of the evidence taken in the court of common pleas and used by consent of the parties in the Court of Appeals. No bill was prepared in the Court of Appeals. The Court of Appeals did not sign or allow the transcript of the evidence; hence issues raised by the petition in error and not raised by the pleadings and judgment, which require the bill of exceptions, so called, to present them to this court, are not before us.

There being no evidence in the record, the case of *Hoffmaster*v. *Black,*78 Ohio St., 1, 84 N. E., 423, 21 L. R. A., (N. S,), 52, 125 Am. St. Rep., 679, 14 Ann. Cas., 877, is decisive of the question.

The facts pleaded in this case and found by the *289Court of Appeals are identical with those which appear in the *Hoffmastér case,*and hence we are compelled to render judgment for the defendants in error.

*Judgment of the Court of Appeals affirmed.*

Marshall, C. J., Robinson, Jones, Matthias, Day, Allen, and Conn, JJ., concur.