161 Iowa 362 | Iowa | 1913
December 29, 1909, defendants executed their note for $1,000 to Truman’s Pioneer Stud Farm of Bushnell, 111. Defendants purchased a stallion of said payee, or rather exchanged a colt of theirs for a stallion. The note was given for the difference. Plaintiff claims to have purchased the note from the payee April 28, 1909, for $990 and sues as an innocent holder. Defendants deny that plaintiff is an innocent holder without notice. They also allege that the Trumans falsely and fraudulently represented the horse to be sound; that the horse had stringhalt in one hind leg and had a disease of long standing in his front feet. The same facts were plead as a breach of warranty. The evidence is ample to show such false representations. In fact, defendants’
Objections should be timely as well as specific. A party ought not to sit by and allow evidence to go in without objection and take his chances on its being favorable to him but, if it should be unsatisfactory, move to strike it out.
IV. At the close of the evidence plaintiff moved the court “to direct a verdict for plaintiff in accordance with the prayer of plaintiff’s petition.” The motion was overruled. No grounds or reasons were given. The evidence was sufficient to take the case to the jury.
V. Instruction No. 8 is complained of. So much of it as is necessary to an understanding of the objection to it is as follows:
4. negotiable fraud^^instructions. (8) If you should find that the said note and the signatures of defendants thereto was obtained through the fraud of Truman Bros., or on account of Truman Bros, having warranted the horse to be sound when he was not, ^en burden is upon the plaintiffs to show by a preponderance of evidence that they acquired said note in the ordinary course of business, for value,*368 before maturity, and without notice of such fraud or breach of warranty or of either of these, or of any other fact or circumstances which would amount to actual bad faith on their part should they not make an investigation as to the same before they can recover. ... To constitute notice of an infirmity in the instrument, the person to whom it is negotiated must have actual knowledge of the infirmity or defect or knowledge of such facts that his action in taking the instrument amounted to bad faith.
In a prior instruction the court told the jury that the execution of the note was admitted, and showed the indorsement to plaintiff, and that plaintiff was entitled to recover unless they found under other instructions it was not entitled to recover, thus giving force to the presumption, in the first instance, that plaintiff was an innocent holder. The remainder of instruction 8, not quoted, defines a holder in due course, etc. The criticism of the instruction, as appellant first states it in his assignment of errors, is that it directs the jury that a simple breach of warranty, without fraud, casts upon plaintiff the burden of showing that plaintiff had no notice of such breach of warranty. We think the language used is not susceptible of such a construction. In argument appellant selects a part only of the language we have quoted and italicizes the words in regard to the warranty only, thus: “If you should find that the said note and the signatures of defendants thereto was obtained through the fraud of Truman Bros. or on account of Truman Bros, having warranted the horse to be sound,, when he was not, then the burdep is upon the plaintiffs to show by a preponderance of the evidence that they acquired said note in the ordinary course of business for value, before, maturity, and without notice of such fraud or breach of warranty or of either of these.” He then argues: “The burden is not on the indorsee to show that he acquired the note without notice of breach of warranty, and the presumption is not that he acquired the note with knowledge of breach of warranty.” If the only question to be considered
No prejudicial error is shown, and the judgment is Affirmed. All the Judges concur.