127 Minn. 291 | Minn. | 1914
The suit is upon a promissory note for $500 by one who claims to be a bona fide purchaser for value and before maturity. Plaintiff prevailed; and defendants appeal from the order denying a new trial.
The note was given when defendants bought of the payee, W. W. Ehle, a fuel and transfer business including six draft horses. The defendants executed a chattel mortgage on the horses to secure the note, it representing part of the purchase price. The defense alleged that the payee of the note procured the same by fraud and false representation in the sale of the horses mentioned; denied that plaintiff was a bona fide holder before maturity; and averred that he had notice of the fraud. Whether there was fraud and false representation in the sale of the horses that cancelled the note, growing out of the transaction, was submitted to the jury, and no complaint is made of the manner thereof. The assignments of error relate wholly to the submission of the issue as to plaintiff being a good faith purchaser, for value, before maturity.
Plaintiff’s suggestion of a presumption that the jury found in his favor on the issue of fraud, cannot be entertained, for if error inheres in the submission of the issue of plaintiff’s being a bona fide holder defendants were necessarily prejudiced, unless it can be clearly demonstrated that the jury found no actionable fraud, or else that there was no evidence for defendants to submit on that issue. Neither can be done in this case, for there was no special verdict, and we have examined that part of the settled case not printed sufficiently to ascertain that the jury might well have found fraud and misrepresentation in the deal and substantial injury therefrom.
In order to determine the correctness and propriety of an instruction assigned as error, it is necessary to state some matters which the testimony either established or tended to prove. The payee of the note, Mr. Ehle, now dead, was a friend of plaintiff. When Ehle was an alderman in the city, plaintiff was street commissioner of the ward. Plaintiff very often visited Ehle’s fuel and transfer business before he sold to defendants, and also the one afterwards started by him opposite, across the railroad tracks. Plaintiff frequently aceom-
We think the cross-examination of plaintiff when considered in connection with the evidence and facts above alluded to made it a question for the jury, and not the court, whether $500 was paid by plaintiff in purchase of this note, or whether, as claimed
Where there is mala fides in a transaction direct proof is scarcely ever available. Proven circumstances might be such that the jury have a perfect right to reject as untruthful a positive statement of a witness though not contradicted by any direct testimony, especially when the witness evinces evasiveness, lack of memory or ignorance on matters which the jury may well conclude to be within his knowledge. Klason v. Rieger, 22 Minn. 59; Brown v. Morrill, 45 Minn. 481, 48 N. W. 328; Hawkins v. Sauby, 48 Minn. 69, 50 N. W. 1015; Los v. Scherer, 90 Minn. 456, 97 N. W. 123; State v. Halverson, 103 Minn. 265, 114 N. W. 957, 14 L.R.A.(N.S.) 947, 123 Am. St. 326. The instruction also tended to advise the jury that plaintiff was protected as a bona fide holder. Whether a consideration was paid for the purchase of this note, and the note was then turned over to plaintiff had a vital bearing on the question of good faith and want of notice of a defense, for “want of notice may be inferred from the payment of a valuable consideration where the transaction occurs in the ordinary course of business and is free from suspicious circumstances.” Plymouth Cordage Co. v. Seymour, 67 Minn. 311, 69 N. W. 1079. It may be noted also that if plaintiff became the owner after March 14,1912, there was interest which on the face of the note was overdue and unpaid. And if Ehle at the time did not have possession of the note so that it was not then delivered to plaintiff, there could hardly be a contention that the latter was a good faith purchaser in the ordinary course of business. O’Mulcahy v. Holley, 28 Minn. 31, 8 N. W. 906; First Nat. Bank of St. Paul v. Commrs. of Scott County, 14 Minn. 59 (77), 100 Am. Dec. 194; First Nat. Bank of Waverly v. Forsyth, 67 Minn. 257, 69 N. W. 909, 64 Am. St. 415.
Order reversed.