Challiss v. Woodburn

2 Kan. App. 652 | Kan. Ct. App. | 1896

The opinion of the court was delivered by

Gilkeson, P. J. :

There are but two questions necessary to be decided in this case: First, That the court erred in giving certain instructions; second, that the verdict and special findings are not supported by and are contrary to the evidence. The instruction complained of is as follows :

“The verified answer of the defendant Bidwell therefore puts in issue the assignment of said note to the plaintiff, and, as to that fact, the burden of proof is upon the plaintiff, and he must establish that the notes and mortgage sued upon were assigned to him as alleged in the petition, and in good faith, for .a valuable consideration.”

In this we think- the court erred, and, under the pleadings and testimony in this case, the instruction was not applicable.

‘ ‘ Where there is no evidence as to the date of an indorsement, the presumption of law is that it was made before maturity, and that the holder is a Iona fide holder for value.” (Rahm v. Bridge Manufactory, 16 Kan. 530.) See, also, Ecton v. Harlan, 20 Kan. 452; Reynolds v. Thomas, 28 id. 810; Lyon v. Martin, 31 id. 411; Mann v. National Bank, 34 id. 746; National Bank v. Elliott, 46 id. 34.

“It is undoubtedly a general presumption of law that indorsed paper was indorsed before maturity. And a party who denies this, and alleges it was indorsed when over due, must prove it; nor without tliis proof can he avail himself of the equities of defense. . . . 'When the time of indorsement becomes material to let in the defense of payment, etc., it is incumbent upon the defendant to show it and rebut the legal presumption arising from the face of the transaction.’ •” (Rahm v. Bridge Manufactory, 16 Kan. 530.) See, also, Mann v. National Bank, 34 Kan. 746; Ecton v. Harlan, 20 id. 452.

There was no such evidence in this case ; nothing that would overturn the prima facie case made by the pleadings and evidence of the plaintiff, and certainly nothing that would shift the burden of the proof back from the defendants to the plaintiff. The execution of the note is admitted. No fraud or illegality of the transaction is alleged, or attempted to be proven. In fact, the only thing attempted to be denied is, that the indorsement on the note was not made in writing at the time stated, and never was made; yet the signature of the indorser is admitted to be genuine. There is not a scintilla of evidence contradicting the direct and positive testimony of the plaintiff that it was made on the 1st of September, 1884, and the testimony of the indorser himself that it was indorsed within a few days after it was made. In fact, this is all the testimony of any kind that refers to this date. Upon this proposition it is idle, therefore, to make further citations. The authorities are uniform. This note, then, was held by the plaintiff discharged of all equities between the.maker and the payee.

There remains, then, but a second question to be disposed of, i. e., that the verdict and special findings are not supported by, and are contrary to, the evidence. From what we have already said, we are compelled to hold that the answer to special finding or question No. 1 is without foundation upon any testimony adduced in this case. No. 2 is in the same condition. The testimony of the plaintiff is undisputed that he did, about the time or just before this note was given, deliver to Lamberson, at the request of him and Woodburn, such a note, under an arrangement that he was to receive another note in lieu thereof, and that he did receive in fulfilment of that agreement or arrangement the note sued upon in this case. The testimony of the mortgage of May 22, 1883, together with a release thereof by Lamberson a short time before this note was given, together with the fact that the land was about this time mortgaged to Gilbert & Gay, all corroborated plaintiff’s testimony. No. 3 cannot, upon any theory we have been able to devise, be sustained. It is an undisputed fact that the note was transferred and indorsed to Challiss not later than September 1, 1884. The defendant Woodburn does not claim that his note was paid until April 2, 1885, when he sold the land to Lamberson, yet the deed given at this time recites that this identical mortgage (and it is so admitted in the testimony) was at that time a valid lien upon the land. This, together with the uncontradicted testimony of the plaintiff that he knew nothing of any claim of payment, and in fact did not know of the transferring of this land until after it was so transferred, seems to us to constitute a total failure of proof upon this proposition. Even if we were to take the conversation between Lamberson and Woodburn at the time of this sale as binding upon Challiss, it is not shown that it was ever brought to the plaintiff’s knowledge. No. 4 : We have failed to find any witness that has testified to any fact that even squints toward such a condition of affairs, and, from what we have said in reference to No. 3, this finding cannot be sustained; and the answer given to No. 6 is not only inconsistent with, this finding, but negatives the propositions therein contained. No. 7 is wholly without foundation.

“The law presumes, in the absence of evidence to the contrary, that the business transactions of every man are done in good faith and for an honest purpose, and any one who alleges that such acts are done in bad faith, or for a dishonest and fraudulent purpose, takes upon himself the business of showing the same. ’ ’

This rule is substantially laid down by the court in its fourteenth instruction, and is unquestionably the law. (Baughman v. Penn, 33 Kan. 504.) “Fraud is never presumed, but must be established by evidence, and no mere suspicion is the equivalent of proof.”

We think it is wholly unnecessary to discuss the evidence or the facts in this case further. We cannot see what good or useful pupose can result therefrom. The very utmost that can be said of the evidence in this case is, that it possibly raises a suspicion against Lamberson, but it does not go even that far as to the plaintiff, Challiss. We cannot agree with counsel for the defendants in error that there are many remarkable and suspicious facts and circumstances proven in this case. His construction placed upon the testimony is ingenious but not tenable, and we think it arises from his zeal in behalf of his clients, and the language used in his argument is much stronger than is warranted by the facts in this case.

After a careful and thorough examination of the record, we are compelled to hold that, upon all the material facts in this case necessary to sustain the special findings, general verdict of the jury, and the judgment rendered, there is a total failure of proof; and, unless an entirely different condition of affairs can be proven upon the rehearing of this case, we would suggest that the judgment herein should be in favor of the plaintiff and against the defendants George Lamberson, jr., John A. and Mary F. Wood-burn, for the amount paid by Challiss to the Bank of Wetmore, with legal interest thereon from the date of payment; that the mortgage be declared a lien upon the land, subject and inferior to a prior lien in favor of the defendant Worthy for the amount actually paid by him or used by the defendant Bidwell in the discharge of the $2,000 mortgage to Gilbert •& Gay, to whose rights under this mortgage he should be subrogated..

The judgment of the district court will therefore be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.

All the Judges concurring.