Patterson v. Volmar

Harvey E. Volmar, defendant in error, entered into a business venture with his father, Julius E. Volmar, some time before 1923. The business venture proved to be a failure. H.E. Volmar feeling morally responsible for the loss of his father's funds invested therein, declared to his father that he would not claim any part of his father's estate. To evidence this understanding an instrument in form ostensibly a promissory note was given to Julius E. Volmar executed by H.E. Volmar in the amount of $7,500, dated April 30, 1923. J.E. Volmar accepted the note under these circumstances.

On May 17, 1934, J.E. Volmar died. The note was listed as an asset of his estate by plaintiff in error, executor. H.E. Volmar, who is not a beneficiary of the estate and cannot except to the inventory of the assets, insists that there never was any valid consideration for the note.

H.E. Volmar instituted this action in the Common Pleas Court of Cuyahoga county alleging substantially the above facts and praying that the note be cancelled and surrendered to him, since his rights and defenses will be jeopardized if the note is not immediately cancelled.

The Court of Common Pleas sustained a general demurrer to the amended petition and plaintiff below not desiring to plead further, final judgment was entered for the defendant. Error was prosecuted to the Court of Appeals which reversed the judgment of the Court of Common Pleas and remanded the cause.

The case is in this court on allowance of a motion to certify the record. The cause came on to be heard on the transcript of the record, briefs and oral argument of counsel for plaintiff in error.

On consideration whereof, it is ordered and adjudged that the judgment of the Court of Appeals be, and the same hereby is, reversed and the judgment of the Court of Common Pleas is affirmed on authority of Quebec Bank of Toronto, Ontario, v.Weyand Jung, 30 Ohio St. 126, and Rothman v. Engel, 97 Ohio St. 77, 119 N.E. 250.

Judgment of the Court of Appeals reversed and that of Common Pleas affirmed.

WEYGANDT, C.J., STEPHENSON, WILLIAMS, JONES, MATTHIAS, DAY and ZIMMERMAN, JJ., concur.