59 Wash. 178 | Wash. | 1910
This is an action upon a promissory note. The defense is based upon alleged fraud in the procuring of' the note and failure of consideration. At the close of defendant’s evidence offei’ed in support of his affirmative defense, the court, upon motion of counsel for plaintiff, directed the jury to render a verdict in plaintiff’s favor. Verdict and judgment were entered accordingly, and upon the denial of defendant’s motion for a new trial, he appealed to this court.
The complaint is in usual form and alleges:
“That said promissory note is in words and figures as follows, to wit:
“ '$400.00 Seattle, Wn., Nov. 23, 1908 30 days after-date I promise to pay to the order of A. Gottstein four hundred dollars at his office. Value received. Due 12, 28, 08. George Simmons.’
“That the said note was, by endorsement of the payee, A. Gottstein, transferred to one J. Seigel.
“That the said note was, by the endorsement of the said' J. Seigel, transferred to the plaintiff.
“That the plaintiff is now the holder and owner of said note.”
The answer admits the making of the note; and as an affirmative defense alleges, in .substance, that on the 23d day of November, the date of the note, one L. I. Hoffman falsely, and with intent to cheat and defraud defendant, represented to defendant that he was the owner of the Novelty Skirt Manufacturing Company, and of the location, lease,; furnishings and fixtures of the store occupied by it in Se
The learned trial court having ruled that, under the issues, the burden of proof was upon the defendant, his counsel excepted to the ruling and introduced evidence in support of the, affirmative defense. Without attempting to review this evidence in detail, it is sufficient to say that it was, in our opinion, ample, if believed by the jury, to warrant the con
We are of the opinion that the learned trial court committed an error in taking the case from the jury, especially in view of the evidence tending to show that the note was not transferred to either Seigel or respondent until after maturity ; and even assuming that the evidence was not sufficient to warrant the conclusion that it was transferred after maturity, still appellant, having made sufficient showing of fraud and failure of consideration attending the giving of the note to entitle him to have those questions submitted to the jury, he was not required to go further in order to make a prima facie case. If his evidence was sufficient to induce the jury to find for him upon these questions, and the respondent offered no evidence to show transfer of the note before maturity and his good faith in acquiring it, then appellant would be entitled to a verdict in his favor. Keene v. Behan, 40 Wash. 505, 82 Pac. 884; Ireland v. Scharpenberg, 54 Wash. 558, 108 Pac. 801; City Nat. Bank v. Mason, 58 Wash. 492, 108 Pac. 1071.
Learned counsel for respondent contends that appellant is not entitled to have the alleged error of the court in directing
We find no other prejudicial error in the record likely to occur upon a new trial. The judgment is reversed, with directions to grant appellant’s motion for a new trial.
Rudicin, C. J., Dunbar, Mount, and Crow, JJ., concur.