46 Kan. 32 | Kan. | 1891
Opinion by
This case was a consolidation of two actions commenced by the First National Bank of Fort Scott against Charles H. Elliott, in the district court of Cowley county, upon two notes made by him to the order of the Eureka Bank, and in its possession as indorsee. Each note was dated October 7,1881, one being for $1,000, and due in 365 days after date, and another for $825, due in 540 days after date. The allegations of the petitions were that the defendant was indebted to the plaintiff upon certain notes, which were set out in the petition in full, with all indorsements thereon. The $1,000 note contained the following indorsements: “ Without recourse.— Edwin Tucker, Cashier. J. D. Hill.” The $825 note was indorsed as follows: “ John Berry. Without recourse. — Edwin Tucker, Cashier. J. D. Hill.” The plaintiff further alleged that it was the owner and holder of each of the notes, and entitled to the proceeds thereof, and then stated the amount due upon each note. The defendant interposed the defense that, while the notes on their face were made payable to the Eureka Bank, the maker executed and delivered them to John Berry as part payment of the purchase- price of a farm ; that the notes were not made for the benefit of the bank, or delivered to it, but were in fact made for the benefit of Berry and delivered to him; that Berry was indebted to the defendant in a sum in excess of the amount due upon the notes; that such indebtedness was a proper offset to the notes in the hands of Berry; and that the plaintiff and its immediate indorser, J. D. Hill,
The bank brings the case to this court, and the first error assigned is the failure of the court to instruct the jury to find for the plaintiff. It appeared in the progress of the trial, from the evidence of the cashier of the plaintiff, that the notes were discounted and received from J. D. Hill on the 23d day of September, 1885; that the notes were paid for by placing to the credit of Hill, as a depositor of the bank, the sum of $1,825; that the bank at the time had no knowledge of the business transactions between Elliott and Berry. The defendant below was permitted, over the objection of the plaintiff, to give evidence in his own behalf of a state of accounts between" himself and John Berry, from which it appeared that the latter was indebted to the defendant in a sum greater than the amount due on the two notes sued on. One other witness was called by the defendant, apparently for the purpose of showing that J. D. Hill, plaintiff’s immediate indorser, was the owner of the $1,000 note. Upon this state of facts, the plaintiff in error contends that, under the rule laid down in the case of Mann v. Second National Bank, 34 Kas. 746, this was an insufficient defense. The doctrine stated in that case was this :
*34 “Preliminarily we would state that the mere possession of a negotiable instrument, payable to order and properly indorsed, is prima facie evidence that the holder is the owner thereof; that he acquired the same in good faith, for full value, in the usual course of business, before maturity, without notice of any circumstances that would impeach its validity, and that he is entitled to recover, as against any of the antecedent parties. (1 Daniel. Neg. Inst., § 812; Ecton v. Harlan, 20 Kas. 452; Lyon v. Martin, 31 id. 411; Rahm v. Bridge Manufactory, 16 id. 530.) Where a maker of such an instrument, so indorsed
The trial court should have instructed the jury to return a verdict for the plaintiff.
We recommend a reversal of the judgment.
By the Court: It is so ordered.