Citizens Bank v. Ryman

12 Neb. 541 | Neb. | 1882

Maxwell, J.

This is an action upon a promissory note given for fruit trees. The defense is a failure of consideration. The note is dated Oct. 28th, 1878, due in one year with interest, and payable to the order of Dewitt & Smith, On the 27th of October, 1879, the plaintiff purchased the note in question, together with a number of other-notes, for about three-fifths of their face value. From this consideration alone, the jury seem to have thought that the plaintiff was not a bona fide purchaser, and found for the defendant. There is no testimony in the record showing the value of these notes, and, for aught that appears, the plaintiff may have paid not only a fair but full value for them. A material inquiry in such case is the solvency of the maker, or the character of the security, if any. The question'of a bona fide purchase must be determined by the simple tests of honesty and good faith on the part of the purchaser.

But, even as between the original parties to the note, there is an entire failure of testimony to invalidate the ■consideration. It is stated that Dewitt & Smith warranted the trees, but there is no testimony whatever tending to show that the trees did not live, or that the alleged warranty has been broken, and the answer, in our opinion, fails to state a defense, there being no allegation of breach of the alleged warranty. The judgment of the district court is reversed and the cause remanded for a new trial.

Reversed and Remanded. '