16 S.D. 49 | S.D. | 1902
Plaintiff having recovered in this action on two promissory notes given as part consideration for 100 patent telescope flour'receiyers, and the'exclusive right to sell such device in certain territory,, the defendant, who made the notes, appeals from an order overruling his motion for a new trial.
Although appellant sought to show that the notes are without consideration, and fraudulently obtained by the patentee and two of his agents, from whom respondent purchased
As the orders containing the purported signatures of Mrs. Evans, Mrs. Cachelin, and Mr. Wolzmuth were shown to be fictitious, and all representations concerning their procurement apparently untrue, the irresistible inference is that such deception was resorted to for the purpose of defrauding appellant, and the testimony relating thereto, together with all the other evidence introduced at the trial, should have been submitted to the jury. Appellant being fully justified in believing these forged orders to be genuine, and that his neighbors
The respondent bank being neither a party to, nor interested in, the contract for the flour receivers, and dealer’s appointment for the sale thereof, there is nothing in the contention that appellant must restore what he received, in order to be entitled to show that the notes in suit were fraudulently procured. Moreover, none of the receivers for which the notes were given were ever delivered to appellant, and the so-called dealer’s appointment had become void according to its terms.
Were this action between the original parties, and for the purpose of rescinding the contract, it is exceedingly doubtful if there would be anything of value to restore. As respondent is not claiming to be connected with the original contract between appellant and the vendors of the patent right, but an innocent purchaser of the notes made the basis of 'this action,, appellant must prove that such notes were procured by fraud, in order to overcome the presumptions adhering to negotiable paper.
In directing the verdict the trial court appears to have taken it for granted that respondent was an innocent purchaser, but the jury might have found, under proper instruc
As the case stood, the testimony was reasonably susceptible of an inference at variance with the view taken by the trial court, and, under proper instructions, it ought to have been submitted to the jury.
The order appealed from is reversed, and a new trial granted.