#### Ginn, Admr., *v.*Dolan.

*Suit on promissory note*— Defense *of want of consideration*— > *Btirden of proof on plaintiff*— Evidence.

Where in a suit upon a promissory note the defense is that the note was given or obtained without a valuable consideration, the plaintiff has the affirmative of the issue and the burden of proof rests upon him, at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced on the trial. *(Klunk*v. *The Hocking Valley Railway Co.,*74 Ohio St., 125, approved and followed. *Dalrymple, Admr.,*v. *Wykcr, Admr.,*60 Ohio St., 108, distinguished.)

(No. 11192

Decided November 9, 1909.)

Error to the Circuit Court of Cuyahoga county.

The facts are stated in the opinion.

*122*Messrs. Blandin, Rice & Ginn,*for plaintiff in ' error.

Our contention is that while the introduction of the notes in evidence made a *prima facie*case for consideration, it did not shift the burden of proof upon all the evidence relating to that issue to the defendant and require him to establish by a preponderance of the evidence that the notes were without consideration.

It has been a very common error for the courts of this and other states in their statements of the law to fail to discriminate closely between the burden of proof upon the whole case, and the state of proof at a particular time in the progress of the trial. This error very frequently takes the form of stating that upon certain proofs being introduced, the burden shifts from one side to the other, which is upon all hands conceded to be an inaccurate statement of the law; what does in fact happen is that upon the introduction of certain proofs which are sufficient to make a *prima facie*case, the burden of producing countervailing proof is cast upon the other party; but the burden upon the whole case and all the evidence still remains upon the party having the affirmative.

This misuse of language has not been confined by the courts to the statement of the law with reference to the burden of proof upon the question of consideration for a promissory note; but similar statements have been made with reference to every other kind of case which involves a presumption sufficient to make a *prima facie*case; as, for instance, the presumption of negligence arising from *123the occurrence of an accident of a particular character or occurring in a particular way; the courts have said repeatedly as to such cases that upon proof being made by the plaintiff of the occurrence of an accident of that character or of its occurrence in that particular way, the presumption made a *prima facie*case in favor of the plaintiff, and that the burden of proof at such point in the progress of the case shifted to the defendant, and he was required to prove by a preponderance of the evidence that he exercised due care and was not guilty of negligence. *Railroad Co.*v. *Mowery,*36 Ohio St., .418.

But the general rule would seem to be well established in negligence' cases by an almost unbroken line of authority, that to rebut and destroy a mere *prima facie*case, the party upon whom rests the burden of repelling its effect need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose counterbalance the evidence by which the *prima facie*case is made out or established ; it need not overbalance or outweigh it. *Klunk*v. *Railway Co.,*74 Ohio St., 125; *Gibbs*v. *Bank,*123 Ia., 742; *Scott*v. *Wood,*81 Cal., 398; *Powers*v. *Russell,*13 Pick., 69; *Heinemann*v. *Heard,*62 N. Y., 448.

This latest decision by our supreme court in *Klunk*v. *Railway Co., supra,*upon the subject conclusivelv settles the proposition in Ohio, that notwithstanding the plaintiff may, by force of a presumption or by evidence adduced, have established a *prima facie*case of negligence against the *124defendant, still that the burden rests upon the plaintiff where there is evidence tending to rebut this presumption to establish the fact of negligence by' a preponderance of the evidence, and we are unable to see wherein such a case differs in any respect from the case of a presumption of consideration arising from the introduction in evidence of a promissory note duly executed.

We do not understand that any court has ever given the presumption attaching to a promissory note, that it was upon a sufficient consideration, when introduced in evidence, any other effect than to make a mere *prima facie*case. All that the defendant here was required to do was to rebut and destroy a mere *prima facie*case, and only produce such amount or degree of proof as would countervail the presumption arising therefrom. In other words, it was sufficient if the evidence,' offered for that purpose, counterbalanced the evidence by which the *prima fcicie*case was made out and established; it did not need to overbalance or outweigh it. Daniels on Negotiable Instruments, Section 164; *Bruyn*v. *Russell,*60 Hun, 280; *F. L. & T. Co.*v. *Siefke,*144 N. Y., 354; *Lamb*v. *Railroad Co.,*46 N. Y., 271; *Whitlatch*v. *Casualty Co.,*149 N. Y., 45; *In re Pinkerton’s Estate,*99 N. Y. Supp., 492; *Coumey*v. *Macfarlane, 97*Pa., St., 361; *Stevenson*v. *Gunning,*64 Vt., 610; *Solomon*v. *Huey,*1 Tex. Unrep. Cases, 265; *Bank*v. *Seymour,*64 Mich., 61; *Paton*v. *Coit,*5 Mich., 510; *Carrier*v. *Cameron,*31 Mich., 373; *Conley*v. *Winsor,*41 Mich., 253; *Search*v. *Miller, 9*Neb., 26; *Brown*v. *Wright,*17 Ark., 9; *Prescott*v. *Johnson,*8 Fla., 391; *McCallum v. Driggs,*35 *125Fla., *277; Small*v. *Clewley,*62 Me., 155; *State*v. *Flye, 26*Me., 312; *Tarbox*v. *Steamboat Co.,*50 Me., 339; *Bourne*v. *Ward,*51 Me., 191; *Best*v. *Bank,*85 Pac. Rep., 1124; *Bogie*v. *Nolan,*96 Mo., 85; *Delano*v. *Bartlett, 6*Cush., 364; *Powers*v. *Russell,*13 Pick., 69; *Jennison*v. *Stafford,*1 Cush., 168; *Burnham*v. *Allen,*1 Gray, 496.

*Messrs. Kerruish & Kerruish,*for defendant in error.

We submit that in a suit on a promissory note where the defendant sets up in his answer want of consideration, the burden is on him to establish this defense by a preponderance of the evidence.

This is, and has always been, the law in Ohio. Whatever the rule may be elsewhere, no matter how great the weight of authority in other jurisdictions, the law in Ohio on this question has long been settled and established and has been affirmed as late as 1899 in the case of *Dalrymple*v. *Wyker,*60 Ohio St., 108.

From the earliest history of Ohio down to the present day, it has not been necessary for the petition in a suit on a promissory note to contain an allegation of consideration. *Sterling*v. *Kious, 7*Ohio (part 2), 238; Section 3171w, Revised Statutes.

If the allegation of consideration is not a necessary allegation in the petition, then the plaintiff need not prove it to make out his case. Phillips on Pleading, Section 477; *Dugan*v. *Campbell,*1 Ohio, 115; *Richmond*v. *Patterson,*3 Ohio, 369; *Mors*v. *McCloud,*2 Ohio, 5; *Ring*v. *Foster, 6*Ohio, 279; *Murphy*v. *Hagerman,*Wright, 294.

*126We do not contend that the burden shifts from the plaintiff to the defendant, but we submit that the burden was on the defendant from the beginning to the end of the trial to show want of consideration. *Raubitschek*v. *Blank,*80 N. Y., 478; *Foote*v. *Valentine,*48 Hun, 475; *Sprague*v. *Sprague,*30 N. Y. Supp., 162; *Carnwright*v. *Gray,*127 N. Y., 92; 2 Greenleaf on Evidence, Section 172; *Flint*v. *Phipps,*16 Ore., 437; Story on Promissory Notes, Section 181.

Davis, J.

The defendant in error sued to recover on four promissory notes. One of the defenses thereto was want of consideration. On the trial and before argument to the jury, the defendant below, plaintiff in error here, asked the court to charge the jury that the burden of proof was upon the plaintiff to satisfy the jury by a preponderance of the evidence, that the notes were given for a valuable consideration; that such burden did not shift to or upon the defendant at any stage of the case; and that, although the presumption is- that the notes were given upon a sufficient consideration, yet when other evidence on that subject is offered by the defendant, the burden is on the plaintiff to satisfy the jury upon all of the evidence that there was a consideration for the notes. The court refused to so instruct the jury and, after the argument, instructed the jury as follows: “The law presumes the existence of a consideration for a promissory note, and this presumption continues until it is shown that there was none. * * * The'defendant in this action, in addition to the denial of the execution and *127delivery of the notes in question, charges that said notes are wholly without consideration. Upon the issues of the absence or want of consideration, the burden of showing this is on the defendant. He must show by a preponderance of the evidence that the notes in question were without consideration.” The verdict and judgment were for the plaintiff, and the judgment in the court of common pleas was affirmed by the circuit court. It appears to us that these facts disclose an error of sufficient gravity to require the reversal of the judgment below.

The weight of the evidence, or as it is otherwise expressed, the preponderance of the evidence, may vary from side to side as a'trial progresses; but the burden, which rests upon the plaintiff to establish the material averments of his cause of action by the preponderance of all the evidence, never shifts. The party who maintains the affirmative of an issue carries the burden of proof through the whole case, although he may be aided by such a rebuttable presumption of law, or such facts, as would *prima facie*support his contention. His opponent need do no more than counterbalance the presumption, or *prima facie*case. It is not necessary that the petition should in terms contain the averment that the note was based on a valuable consideration, because that is presumed; but when consideration is denied in the answer there is an issue made upon that point, on which the plaintiff has the affirmative, and, the presumption being *prima*facie■ only, and not conclusive, the burden of proof necessarily rests upon the plaintiff to show a consideration by a preponderance of the *128whole evidence given on the trial of the issue. The reason of the rule, and some of the authorities which support it, are fully shown in *Klunk*v. *Railway,*74 Ohio St., 125. It would be easy to amplify the citation of authorities (for example, see cases cited 4 Am. & Eng. Ency. Law (2 ed.), 200, n. 2; *Hurley*v. *Ry. Co.,*180 Mass., 370; *Bank*v. *Adams,*70 Vt., 132; *Kenny*v. *Walker,*29 Ore., 41; *Owens*v. *Snell,*29 Ore., 483; 16 Cyc., 932-934), but it would not clarify the proposition to any extent. Indeed, it is not believed that the courts below would have fallen into this error, but for a misconstruction of *Dalrymple, Admr.,*v. *Wyker, Admr.,*60 Ohio St., 108.

There were only two questions considered in that case. The first one was, whether the defense of want of consideration, as it was there pleaded, was good against a demurrer. This court held that it was not. But the case having been heard on evidence, the court proceeded to the second question, namely, whether the evidence adduced by the defendant was sufficient to overcome the presumption of a valuable consideration; and this was the conclusion of the court: “The evidence

then does not overcome the presumption of a consideration arising from the giving of the note. In other words, to say the least, the evidence leaves the case in as much uncertainty as to whether there was, as to whether there was not, a consideration sufficient in law to support the note, and, consequently, the note with the presumption in its favor must prevail.” It must be obvious, therefore, that the question involved in the case, at bar was not raised by the record in *Dalrymple,**129*Admr.,*v. *Wyker, Admr.,*and was not considered by the court; and the syllabus of that case cannot be construed as being any broader than the facts of the case would warrant.

It is proper to say further, replying to a suggestion by counsel in argument, that a plea of failure of consideration, or of payment, presents a case very different from this. These defenses, as it were, confess and avoid. They are affirmative defenses, and upon such the burden is upon the defendant from the beginning to the end, just as it is upon the plaintiff here.

The judgment of the circuit court and that of the court of common pleas are

*Reversed.*

Crew, C. J., Summers, Spear and Shauck, JJ-, concur.