DeWitt v. Perkins

| Wis. | Feb 15, 1868

DixoN, C. J.

The plaintiff, knowing tbe defendant, and tbat be was in fair credit and able to resjmnd, purchased, shortly before its maturity, a promissory note against him for three hundred dollars and interest for six months, paying therefor only tbe sum of Jive dollars. As between tbe defendant and tbe payee, tbe note was invalid for want of consideration. Is tbe plaintiff a bona fide holder for vaule, so as to protect him against tbe defense of a want of consideration? We answer, no. Tbe consideration paid by him was merely nominal. It is as if tbe note bad been given to him, and be should claim tbe protection afforded a bona fide bolder for value. It appears on tbe face of tbe transaction tbat it was not a negotiation of tbe note in tbe usual course of business, but tbat tbe sum exacted on tbe one side and paid on tbe other was to give tbat tbe semblance of a sale, which otherwise was intended as a mere gift, or, what is worse, a shift to get tbe note out of tbe bands of tbe payee so as to cut off the- defense of tbe maker, for tbe payee’s benefit. Either view is equally fatal to tbe action of the plaintiff, provided tbe defense of a want of consideration is established.

Again, tbe buying of a note against a solvent maker, tbe purchaser knowing him to be such, for a mere nominal consideration, is very strong, if not conclusive, evidence of mala fides. It is constructive notice of the invalidity of tbe note in tbe bands of tbe seller — such as to put tbe purchaser upon inquiry, which, if' he fails to make, he acts at his peril. Brown v. Taber, 5 Wend., 566" court="N.Y. Sup. Ct." date_filed="1830-10-15" href="https://app.midpage.ai/document/brown-v-taber-5513560?utm_source=webapp" opinion_id="5513560">5 Wend., 566; Mathews v. Poythress, 4 Ga., 287" court="Ga." date_filed="1848-02-15" href="https://app.midpage.ai/document/matthews-v-poythress-5551078?utm_source=webapp" opinion_id="5551078">4 Ga., 287, 299 et seq., and cases cited; Anderson v. Nicholas, 28 N.Y., 600" court="NY" date_filed="1863-09-05" href="https://app.midpage.ai/document/anderson-v--nicholas-3599998?utm_source=webapp" opinion_id="3599998">28 N. Y., 600; Whitbread v. Jordan, 1 Younge & Collyer (Exch.), 308, 328; Jones v. Smith, 1 Hare, 68 ; 1 Parsons on Notes and Bills, 254, 259-60. The proof offered to show a failure of consideration should-have been received, and the case submitted to the jury on this ground.

The court likewise erred in not requiring the witness Lakin ^* to answer the questions put to him. The question as to who owned the note when he, Lakin, sold it to the plaintiff, did not, by possibility, call for any information communicated to the witness by the plaintiff’. It related to a fact which the witness must have known before the note was sold or the plaintiff became interested. The claim of privilege interposed to this, question seems to proceed upon the idea .that Mr. Cady, the payee of the note and former client of the witness, is the real party in interest in this suit, which may be very true, but still he does not appear before the court in that attitude. He appears as one having sold the note without liability over,'and therefore having no interest in the question. He cannot for this purpose be regarded as the party in interest.

The other question put to the same witness, and answer declined on the same ground, was as to a matter which in its very nature never could have been the subject of a privileged or professional communication to the witness. It was, whether hq, the witness, had ever advanced any money on the note to. any person. If the advancing of money by an attorney upon a note is a privileged communication, then it,is difficult to conceive what single act of an attorney may not be.

By the Court — Judgment reversed, and a new trial awarded.

* Mr. Lakin was the plaintiff’s attorney in this action. — Rep.