#### James S. Deming, Plaintiff in Error, v. Agnes Grunenberg, Defendant in Error.

Gen. No. 18,475.

(Not to be reported in full.)

Error to the Municipal Court of Chicago; the Hon. Hosea W. Wells, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1912.

Affirmed.

Opinion filed November 20, 1913.

*209Abstract of the Decision.

1. Bills and notes, § 472 * —when payments made to beneficial plaintiff may be set off against nominal plaintiff. In suit against maker on promissory notes made payable to the plaintiff, where the suit is tried on the theory that plaintiff is only a nominal plaintiff, a judgment in favor of the nominal plaintiff for the balance due after deducting amount shown by the evidence to have been paid by defendant to the beneficial plaintiff, held proper.

2. Bills and notes, § 420 * —what evidence admissible in suit on note. In an action on promissory notes on the theory that plaintiff is only the nominal plaintiff, memorandum cards or orders sent by the beneficial plaintiff to the defendant upon which defendants made payments in-merchandise, held admissible.

3. Bills and Notes, § 373 * —when presumption as to ownership of note overcome. Prima facie case of ownership made by the introduction of a note in evidence, held overcome by other facts subsequently appearing upon the trial.

4. Appeal and error, § 1445 * —when temporary absence of affidavit from court room harmless. Refusal to grant a motion to strike an affidavit of merits from the files because it was not brought into court until the trial was in progress cannot be complained of where the appellant was not harmed thereby.

5. Bills and notes, § 407*—burden of proving fraud and want of consideration. In an action on promissory notes, brought by the payee, where fraud or want of consideration is alleged as a defense, the burden of showing the fraud or want of consideration is on the defendant.

Statement of the Case.

Action by James S. Deming against Agnes Cronenberg to recover on several promissory notes, aggregating $255, executed by defendant and made payable to plaintiff. From a judgment in favor of plaintiff for $24.46, plaintiff brings error.

Thomas J. Young, for plaintiffs in error.

No appearance for defendants in error.

*

gce Illinois Notes Digest, Yols. XI to XIV, same topic and section number.

Mr. Presiding Justice McSurely

delivered the opinion of the court.