80 P. 414 | Or. | 1905
delivered the opinion.
The plaintiff having rested with the introduction of the note, the defendants offered evidence tending to establish their first defense, when they were met with the objection that it was not admissible because the answer stated no defense against recovery. This was coupled with another that defendants ought not to be permitted to prove such defenses until they had offered evidence tending to show that plaintiff was not an innocent 'holder for value and in due course. The objections were sustained, and defendants were not permitted to introduce any testimony whatever, and error is predicated upon the action of the court in that regard. The third separate defense was abandoned at the hearing. This leaves the first and second only to be considered.
In Shirts v. Overjohn, 60 Mo. 305, it was held that “Where it appeared that the party sought to be charged intended to bind himself by some obligation in writing, and voluntarily signed his name to what he supposed to be the obligation he iu+ended to execute, having full and unrestricted means of ascertaining for himself the true character of such instrument before signing the same, but by his failure to inform himself of its contents, or by relying upon the representations of another as to the contents of the instrument presented for his signature, signed and delivered a negotiable note in lieu of the instrument intended to be signed, he cannot be heard to impeach its validity in the hands of a bona fide holder.” This case bears a marked analogy to the one at bar, and seems to state the consensus of judicial opinion upon the subject; the learned author of the note to Green v. Wilkie (36 L. R. A. 434), saying: “Most of the cases, however, hold that if a person who can read trusts to the representations of, or reading of the-paper by, a stranger, he will be guilty of negligence which will preclude his making the defense.” See, also, upon this subject, Mackey v. Peterson, 29 Minn. 298 (13 N. W. 132, 43 Am. Rep. 211); Ort v. Fowler, 31 Kan, 478
These matters, however, cannot help the defendants, for they have absolutely not denied ownership, or that it was indorsed for value before maturity, and have, failed to make- any issue or question whether the plaintiff’s purchase was with notice of the infirmities suggested. The complaint surely states a good cause of action, and, unless controverted, it stands as a prima facie case. In other words, the plaintiff, by no competent pleading on the part of the defendants, has been put to his additional proofs of having paid value in due. course] before maturity, and without notice of the infirmities. The fraud latterly spoken of must be distinguished from that which counsel claims for such as was attempted to be set up in the first separate answer; the purpose of the former being to show a state of facts that would exclude the possibility, in a legal sense, of an innocent holder of the paper, but all that is claimed for the fraud in the latter. sense is'that proof of it puts the plaintiff to the burden of showing good faith in his purchase and the want of notice of its infirmity. We say, as to this latter, the defendants’ pleadings do not present the issue they are insisting upon.
From these conclusions it is plain.that the court very properly directed a verdict for the plaintiff, and the judgment appealed from will therefore be affirmed. Affirmed.