231 N.W. 534 | S.D. | 1930
In this action on five negotiable promissory notes for $1,072 each, defendant pleaded want of consideration as a defense. The case has appeared in our reports on three former occasions. 43 S. D. 564, 181 N. W. 99; 49 S. D. 303, 207 N. W. 61, 51 A. L. R. 287; and 51 S. D. 357, 213 N. W. 943, 51 A. L. R. 287. On the last occasion it was remanded to the trial court to determine “when, plaintiff paid the seventy-five per cent of the purchase price and when knowledge of defendant’s defense came to plaintiff.”
On Dcember 15, 1917, defendant, then in business in Aberdeen, S. D., made a contract with Interstate Tractor Company of Waterloo, Iowa, for the purchase of fifty tractors to be shipped to him during the months of January, February, and March, 1918. For the purchase price he executed to the tractor company fifty notes for $1,072 each, some due in six month and some in six and one-half months. The five notes involved in this suit are part of the fifty. The tractor company agreed not to negotiate any note until it ihad shipped a tractor therefor; defendant got no tractor for any of the notes in suit. ’Since the notes were therefore negotiated in breach of faith, the burden is on plaintiff to prove that it acquired title to them, as a holder in due course. Rev. Code 1919, §§ I759> I7f>3- The following is a summary of the evidence on that point: Plaintiff is a corporation engaged in the business of dealing in commercial paper, largely in the purchase of notes and other evidence of indebtedness from manufacturers and jobbers. Its principal place of business is at Baltimore, Md. In April, 1918, Alexander E. D'uncan, one of its officers, in response to a
McNally, the secretary of the tractor company, testified that the five notes in suit with draft attached were transmitted from Waterloo to plaintiff on April 25th, and identified the paid sight draft of that date, drawn on defendant to the order of First National Bank of Waterloo, Iowa, for $4,020, and testified that the draft was paid by the Commercial Credit Company in the ordinary
In Jerke v. Delmont State Bank, 54 S. D. 446, 223 N. W. 585, 594, in an exhaustive opinion by Judge Campbell on the question of the duty of a trial court to direct a verdict on undisputed ■ estimony given by interested witnesses, it is said: “If the testimony in behalf of the party having the burden of proof is clear and full, not extraordinary or incredible in the light of general evperience, and not contradicted, either directly or indirectly, by other witnesses or by circumstances disclosed, and is so plain and complete that disbelief therein could not arise by rational processes applied to the evidence, but would be whimsical or arbitrary, then, and in such case, it is not only permissible, but highly proper, to direct a verdict, and- the direction of such verdict should not be prevented merely by reason of the fact that one or more of the witnesses are interested in the transaction or the result of the suit.”
This rule is followed in National Bank of Commerce v. Bottolfson, 55 S. D. 196, 225 N. W. 385, and First National Bank v. Thompson, 55 S. D. 629, 227 N. W. 80, 81. Applying this rule to the facts in the present case, we think the court should have sustained plaintiff’s motion for a directed verdict at the close of all the evidence.
The judgment and order denying a new trial are reversed.