194 Iowa 1090 | Iowa | 1922
On March 21, 1919, defendant gave his promissory note to a corporation known as the Midland Packing Company, for a subscription to the capital stock of said company, which note thereafter came into the hands of the plaintiff bank, at whose request defendant made the note now in suit as a renewal of the one given to the packing company. When it was not paid, this action at. law was brought, to enforce its collection. In defense to said action, the answer alleges that defendant’s subscription to the stock and the execution of said note were induced and obtained by false and fraudulent representations-on the part of the company and its agents, to the effect that the stock was then worth $125 per share, that notes given in payment therefor were to be used as collateral only, and that said shares would be resold by the company or its agents within four months from said date; and that the note in suit was so given upon the express condition precedent that it should not become effective unless the agreement for resale was performed. It is further alleged that said representations were false, and known by the company and its agents to be false; but that plaintiff, believing and relying upon their alleged truth, was
I. On the trial, plaintiff’s main case was made by offering the note in evidence. It was admitted without objection, and plaintiff rested without placing any witness on the stand. The defendant’s testimony tended to show that, in March, 1919, he was approached by one Chance, agent of the Midland Packing-Company, and solicited to purchase shares of stock of the par value of $100 in said company; that, as a result of the negotiation so opened, defendant did undertake to purchase a quantity of such stock, and defendant executed his promissory notes for the price; that to induce such purchase the agent stated and represented that the shares were then worth $125 each, and proposed and offered that, if said purchase was made, he would within four months resell said shares at $125 each, and that in the meanwhile the defendant’s note given for such stock would be left in the plaintiff bank. Defendant, having agreed to purchase on those conditions, gave his notes for the price, and received in return from the agent an instrument as follows, written on the back of a Midland Packing Company’s blank note:
‘' I hereby agree to sell for J. N. Bernard 100 sharés of Midland Packing Company stock for $125 per share. Above shares to be sold within four months from date. If not sold as above, all notes to be returned to above.
“ [Signed] W. M. Chance, Financial Agt.,
“Midland Packing Company.”
Chance did not return within the four months, and did not
The defendant also called the plaintiff’s president as a witness. This witness testified that he bought the note on the day or day after its date; that he paid for it by issuing a certificate of deposit for an amount not named; and that he knew it was given for stock in the packing company. He was not asked and did not state whether he did or did not know of the agreement for resale of the stock.
The plaintiff offered no evidence other than the note in suit, and at the close of the defendant’s case in chief, moved for a directed verdict in its favor. The grounds of the motion were, in substance, that the evidence Avas insufficient to sustain a verdict for the defendant; that there is no showing that the bank or its president had any knowledge of the alleged fraud by the agent, Chance, or that either had colluded with or assisted Chance in the procurement of the original note; and that it does not “shoAV by clear, satisfactory, and convincing proof that there Avas any fraud in the inception of the note which would vitiate it either in the hands of the plaintiff bank or in the hands of the Midland Packing Company.” This motion Avas sustained by the trial court in a statement made in the following language:
“The Court [addressing defendant’s attorneys] : I don’t think, gentlemen, that you have made out a case here. If this
It will thus be seen that the trial court adopted the theory that the burden was upon the defendant to show affirmatively that plaintiff was not an innocent holder in due course of the original note of which the note in suit is a renewal. That such is the ordinary'rule in actions upon commercial paper is to be admitted; but it does not apply when a defect is shown m the title of any person who has negotiated the instrument. Code Supplement, Section 3060-a59; Keegan v. Rock, 128 Iowa 39; Hawkins v. Young, 137 Iowa 281; McNight v. Parsons, 136 Iowa 390; City Nat. Bank v. Jordan, 139 Iowa 499; Iowa Nat. Bank v. Carter, 144 Iowa 715; Arnd v. Aylesworth, 145 Iowa 185; Connelly v. Greenfield Sav. Bank, 192 Iowa 876, and cases cited therein. In the absence of any other showing, the possession of the paper by the plaintiff is sufficient to make a prima-facie case of his good faith and right to recover thereon; but when fraud or other defect in its origin is pleaded, and evidence is offered by defendant fairly tending to show alleged fraud or defect in the paper which would constitute a good defense if the action were brought by the payee or by any'other person having notice of the facts, the burden then rests upon the plaintiff to make affirmative proof that he or some person
As will be seen by the record, plaintiff did not in any manner attempt to show itself a holder in due course, except the prima-facie effect of its possession of the paper and the simple statement of its president that he bought the note soon after its date. The burden which the law imposes upon the indorsee of a note with such defect in its title is in no manner met, and the court could not without error assume such good-faith prirchase as a matter of law. The error is doubtless attributable to the failure of the court to note the distinction made by the statute, Code Supplement, Section 3060-a59, between the ordinary action upon negotiable paper by an indorsee, and one in which a defense based on an alleged defect in the title of the payee or indorser is made. See, also, Selma Sav. Bank v. Harlan, 167 Iowa 673, 676. The effect of the cited statute is to render no longer applicable many of the earlier precedents on which the plaintiff relies.
II. Referring now to the exclusion of the defendant’s testimony as to the contents of the letter alleged to have been furnished Chance by the bank or its president, and displayed by Chance to defendant in negotiating the sale to him of the shares of stock. If it be a fact that plaintiff’s president, who thereafter purchased the note, interested himself in 'aiding Chance, by letter or otherwise, to persuade defendant to make the purchase and give the note, it was material and competent evidence, as bearing upon the question of notice to the bank of the character of the transaction; and the letter, if it had been produced
III. Pending the trial, the defendant had amended his answer by pleading that the note given by him was not stamped, as reauired by the laws of the United States, and was, therefore, void. At the close of the evidence, and after moving for a directed verdict, but before the ruling thereon, plaintiff presented an amendment to its reply, as follows:
“Motion for Leave to Amend Reply.
“By Mr. Fribourg: At this time, the plaintiff desires, inasmuch as the question as to the note not being negotiable, because it was not stamped at the time of its execution and original delivery, having been presented to the court after the trial of the case commenced, in the last amendment to answer, the plaintiff asks leave to file an amendment to the answer, setting up that any rights which the defendant might have as a matter of law, by reason of such claim made in his amendment, have
In its ruling sustaining the motion for a directed verdict, the court made no reference to this issue, but, as we have seen, based its ruling solely upon the ground that defendant had failed “to show that the bank had any knowledge of any defects or infirmities in the inception of the note.” It may here be said that, under our recent rulings, the alleged failure to stamp the note was not a defense to the plaintiff’s action, and the court did not err to defendant’s prejudice in failing to expressly rule thereon.
IY. It is argued for appellee that defendant, having renewed the note in the hands of the bank, thereby waived his right to assert the defense of fraud in the transaction in which the original note was given. To this contention, it is a sufficient answer to say that, in the original petition on which the case was tried, no waiver was pleaded, and the amendment filed thereto at the close of the trial was made with express reference to the defense predicated upon the omission of the required revenue stamp; and it is a familiar rule that a waiver not pleaded may not be relied upon. In this connection, it is to be remembered that the defense pleaded does not set up plea .of rescission, but of fraud, which, if proved and available as against the plaintiff, relieves defendant from liability on the contract. It may also be said that, while there is some confusion in the precedents, it is fairly well settled that, in the absence of circumstances amounting to an estoppel, as between the original parties and transferees who are not bona-fide purchasers a renewal note is open to all defenses which might have been good against the original note. See House v. Davis, 60 Ill. 367; Commonwealth Ins. Co. v. Whitney, 1 Metc. (Mass.) 21; Hill v. Buckminster, 5 Pick. (Mass.) 391; Hooker v. Hubbard, 102 Mass. 239, 245; Wheelock v. Berkeley, 138 Ill. 153 (27 N. E. 942); 1 Parsons on Notes and Bills 176, 177; Tiedeman on Commercial Paper, Section 180; Daniel on Negotiable Instruments, Section 177. If the title to the note
In short, if the renewal would not operate as a waiver or estoppel, had it been made to the payee, it would not so operate as against a holder through a defective title, or at least 'not until such holder has satisfied the burden resting upon him to prove the good faith of his holding. In addition to the authorities already cited upon this point, see Hutchins v. Stanley, 88 Kan. 739 (129 Pac. 1180), and eases there cited; also, Seager v. Drayton, 217 Mass. 571 (105 N. E. 461); Adams v. Ashman, 203 Pa. 536 (53 Atl. 375, 377). The last cited case is, in many of its features, quite parallel to the one at bar. Whether the plaintiff was a bona-fide holder in due course, and therefore not affected by the alleged fraud in the inception of the note, thus enabling it to enforce the renewal note without reference to the merits of the original, was a question for the jury. The fact that the accrued interest was included in the renewal note did not constitute a new and independent consideration for such renewal.
Y. Counsel for appellant make the further point that plaintiff did not show such a purchase of the note as entitled it to be considered a bona-fide purchaser, in that it stands admitted that no money was paid or property delivered in payment for such transfer. As we have seen, the plaintiff’s president testifies that the deal was made by him, and that, in consideration for the transfer of tlie note, the bank executed to the payee its certificate of deposit for an amount not shown. It does not appear that said certificate has ever been paid or redeemed, or that the money which it represents is not now in the bank. The certif
That the evidence is sufficient to support a finding of a defect in the title of the person negotiating the sale of the paper to plaintiff is not open to doubt. It follows from what we have said that the trial court erred in its holding upon the burden of proof, and in denying defendant the right to go to the jury upon the issues joined. The ruling and judgment appealed from are reversed, and cause remanded for new trial. — Reversed.