French v. Gordon

10 Kan. 370 | Kan. | 1872

The opinion of the court was delivered by

Valentine, J.:

The second defense set forth in the defendants’ answer states facts sufficient not only to constitute a defense to the plaintiffs’ cause of action, but also ^if stated in a petition) to constitute a cause of action against the plaintiffs, whether it alleges any fraud or not. If the ■plaintiffs through their agent sold and agreed to deliver to the defendants a certain quantity of good, sound, merchantable winter apples, and then did not do so, but delivered worthless and unmerchantable apples, we think the plaintiffs are liable; and this liability may be set up by the defendants in an action brought by themselves, or in an action brought by the plaintiffs, as in this case, the action being on a draft or bill of exchange drawn by their agent in favor of the plaintiffs ■on the defendants and accepted by the defendants for the price of the apples. The foregoing statement of facts is substantially what said second defense alleges. The question of the sufficiency of said second defense was raised by the plaintiffs by objecting to the introduction of any evidence under it. The plaintiffs do not in their brief seem to raise any other question in this court concerning the introduction of the evidence in the court below. Neither do they seem to raise any question concerning the charge of the court below to the jury. In fact, they could not well do so, for their exceptions to the charge were general exceptions to the whole charge, and not special exceptions to any particular portion thereof. The main question, therefore, brought to this court is, whether the court below erred in overruling the plaintiffs’ motion for a new trial. And the main ground stated in the motion for a new trial was, that the verdict was not sustained by sufficient evidence. We think it is true, as claimed by plaintiffs, that “the payee or holder of a bill of exchange, after its acceptance, and before due, is presumed to be the holder in good faith, and in laiv stands precisely the same as a bona fide purchaser of a note before due,” and that “such an instrument in the hands of a bona fide payee cannot be defeated by fraud, false representations, or. warranties on the part'of the drawer.” But the presumption that the holder of a bill of exchange or other negotiable instrument is- a bona fide holder is only a prima faeie presumption. The presumption is never a conclusive one. It is always open to be controverted. And generally very slight evidence tending to show that the holder of such' an instrument is not a bona fide holder will throw the burden upon, him of showing that he is a bona fide holder. And if it should be shown that he is not a bona fide holder, then he holds the instrument subject to all the defenses that might be set up against it if it were still in the hands of the original holder, or that might be set up if the suit were between the original parties. In this very case it is claimed that the plaintiffs are not1 bona fide holders of the bill of exchange or draft sued on. The defendants allege that the plaintiffs themselves were the parties who sold to the defendants the apples; that they sold the apples through their agent Brown; that. Brown drew the bill of exchange in favor of the plaintiffs on the defendants; and that the plaintiffs themselves furnished and delivered to the defendants the apples. It is also claimed by defendants that even if it was not the plaintiffs who sold the apples, but Brown individually, still the plaintiffs had such an intimate connection with the transaction that they must have known all the facts, or at least they must have known enough of the facts to have put them on the inquiry as to the balance, and therefore they could not have been or become bona fide holders of the draft. We agree with the plaintiffs that “ the declarations of a person that he is the agent of another are inadmissible” as evidence to prove agency against the supposed principal, and that the fact of agency must always be proved the same as any other fact. But this proposition figures but very little in this case, for the court below never asserted a contrary doctrine, and therefore did not err with respect thereto. Now suppose there was not sufficient evidence introduced to prove that Brown was the agent of the plaintiffs in the sale of the apples, and still we think there was sufficient evidence to sustain the finding of the jury that the plaintiffs were not innocent and bona fide holders of the draft sued on. The plaintiffs knew that the draft sued on (which was for the sum of $357,) and another draft (which was for the sum of $352.24,) were given for 298 barrels of apples which were furnished by themselves to the defendants. They knew that the apples were to be “in good order and well-conditioned,” even if they did not know that they were to be good, sound, merchantable winter apples. They knew that the apples were not “in good order and well-conditioned,” for the apples were not so in fact, and the plaintiffs themselves furnished the apples directly to the defendants. All this they knew when they received the draft sued on. The plaintiffs themselves have received full payment on the $352.24 draft; but they have never yet paid Brown anything for the apples, nor have they yet become liable to pay him anything. They have parted with nothing but their damaged apples. Therefore we think they were not bona fide holders of the draft.

The verdict of the jury was for the plaintiffs for the sum of one hundred dollars, and judgment was rendered accordingly. We think the verdict should be allowed to stand; and the judgment is affirmed.

All the Justices concurring.