55 Mo. 398 | Mo. | 1874
delivered the opinion of the court.
This was an action on two negotiable promissory notes, which had been executed by the defendant to one S. ,E. DeWolf. Both are made payable to S. P. DeWolf or bearer, for value received, each for §190, and dated at Clinton county
At the instance of the plaintiff the court instructed the jury, “that under the pleadings and evidence in this case they should find for the plaintiff, and assess her damages at such sum as they might believe from the evidence is due her on the notes sued on, not exceeding the amount due plaintiff on the notes of DeWolf, which were read in evidence.” To the giving of this instruction the defendant excepted. The jury found for the plaintiff and the defendant filed a motion for a new trial which was overruled, and he has appealed to this court.
The court committed no error in excluding the testimony offered by the defendant, to prove the alleged frau,d in procuring the notes. There was no foundation laid for the introduction of such proof. There was no evidence tending to show that the testator took the notes without value, or after maturity, or not in the usual course of trade, or with notice of the alleged fraud. It would have been improper to admit evidence of the fraud without first laying a foundation for its admission.
The plaintiff’s testator was an indorsee by delivery of the notes sued on before maturity. The notes’ were payable to
Judgment affirmed.