In this action upon promissory notes, signed by defendant and transferred to plaintiff, a verdict was, rendered for defendant. Plaintiff appeals from the order denying its motion for judgment not withstanding the verdict or a new trial.
In the spring of 1920, San Benito Land Company, a corporatioi with its home office in Kansas City, Missouri, was engaged in dis posing of land in Texas. Its agent, one Hutchinson, induced defend ant, a resident of this state, and) some of his neighbors to go am see the land with an excursion party gotten up and mostly pah for by the company. On the way home from viewing the land, de fend'ant bought 10 acres at $700 an acre and entered into a contrac therefor, dated May 26, 1920. The contract recites $200 paid an three promissory notes given for $3,800 due March 1, 1921, as eari est money, and provided that, on the payment of said earnest monelj notes, the company would execute a warranty deed reserving H vendor’s lien for the amount of $3,500, for which defendant shoulu *427 execute vendor’s lien notes payable in 5 equal instalments. The deed with abstract andj the opinion of a named attorney as to the state of the title were to be delivered within a reasonable time after the .earnest money mentioned had been paid.
In the following month the agent who negotiated -the contract -came to defendant where he was cultivating com and, after some general talk, produced some papers on which he wanted defendant’s signature saying: “It is just a form of paper this land company is using for you to fill out, so that they can issue to you the proper deed when the time comes.” Defendant testified that he objected, that he said he desired to consult his banker or some business man before he signed any, papers, that he said: “I cannot read very good; I cannot see to read.” He also noticed, that there was much fine print on the papers, and he had no glasses, but that the agent finally persuaded him to sign on the assurance that it “was a form they have to go through to get a deed for the Texas land.” The [evidence discloses that defendant is unschooled; that he cannot [read without glasses; and that he is a Norwegian and reads English [with great difficulty. The notes were delivered to plaintiff in June, 11920, as collateral to a loan of $8,000 made the land company in (February before, and were also to be collateral to a subsequent loan bf $23,000 made in October following. There is testimony that there Is unpaid on these loans over $9,000.
I Defendant relied on misrepresentation and fraud inducing the contract of purchase. The court refused to submit that issue, and Ihe jury were charged that plaintiff was entitled to a verdict, unless Ilefendant had established that the notes in suit were obtained by Irick or artifice so that he did not know that he was signing promis-lory notes, and that he was not guilty of negligence in so signing Ihe same. Appellant urges that, since the contract calls for these lotes, there could be no trickery worked on defendant in obtaining Ihe same and that, at any rate, the land company got merely what ft; was entitled to, and further that defendant under the decision of Mackey v. Peterson,
■Was the defendant negligent as a matter of law? The so-called vendor’s lien notes did not have the appearance of the usual promissory note. Defendant had no reason to anticipate that he would be asked to sign the notes at that time. They were not exacted or asked for when the earnest money notes were given, and the contract is rather blind as to when they should be executed. It says nothing of interest. Possession is not to be had until the deed is given and accepted. The deed is to have a vendor’s lien reservation clause and the notes are to be vendor’s lien notes. In other words, the notes and deed are to constitute a mortgage in favor of the land company for the unpaid purchase price. It would be reasonable for defendant to suppose that those notes were to be delivered when the deed was received. At any rate, the evidence exonerating defendant from negligence is such that the court was required to submit the issue to the jury. Section 7247, G. S. 1923, was expressly retained by the Uniform Negotiable Instruments Act (G. S. 1923, § 7239, § 195 of the act). Under that section the defendant was entitled to have the jury determine the issue of negligence if there was any substantial evidence that he was not. The statute wa> passed after the decision in Mackey v. Peterson, supra. It certainly was not intended thereby to make the law more stringent againsii the one tricked into signing a promissory note under the belief thal it was a paper of a different import — rather the reverse. But, oil course, the burden is upon the one invoking the statute to prove tha he was not negligent, and, where there is no evidence offered t( show that he was not guilty of negligence in signing without know
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ing the terms of the instrument, the court need not submit the question to the jury. Merchants State Bank v. Umlauf,
Nor do we think the errors assigned entitle to a new trial. Whether the contract provided for the notes in suit was best answered by the contract itself. And whether defendant’s first answer alleged anything about signing the notes in the cornfield was quite immaterial. The refusal to let defendant answer questions on these subjects cannot be considered reversible error. The leading questions to which objections of plaintiff were overruled did not bring out any fact bearing upon any issue that was permitted to go to the jury.
We see nothing upon which to reverse in the charge. The court held as a matter of law! that plaintiff was an innocent holder and charged directly and unequivocally that it was entitled to a verdict, unless defendant established that he was tricked into signing the notes, not knowing them to be such, and that in so doing he was not guilty of negligence .in not learning that they were notes. The remark in the charge that it did not matter whether plaintiff was an innocent holder or not, could not have prejudiced. On the sole defense submitted the statement was true. Albrecht v. Rathai,
The remark of the court in the part of the charge to which the last assignment of error relates, viz: “ — Then, if you find that his signature was obtained, whether he signed one or all of them is not so material, but whether he signed one or all of them, if he was tricked into signing the notes, and he did not know that he was signing them and if he was not negligent, then your verdict must be for the defendant.” The answer admitted that the notes in suit were signed by defendant. Plaintiff was uncertain in his *430 testimony as to how many signatures were written when Hutchinson obtained the same in June, 1920. With the admission in the answer defendant’s testimony as to how many times he affixed his name was quite immaterial. And if the words of the court were thought liable to cause confusion, it was a matter that should have been called attention to before the jury retired. We do not think it could affect the jury to the prejudice of plaintiff on the distinct issues of fact submitted.
The order is affirmed.