31 Colo. 164 | Colo. | 1903
delivered the opinion qf the court:
The only evidence offered at the trial consisted in the production by plaintiff of the promissory notes, upon the back of each of which was what purported to be a written transfer by the payee to the plaintiff. -No objection was made to the introduction of these notes, and the defendants offered no evidence. When plaintiff rested, defendants moved for a dismissal of the action because there was no evidence of an assignment by the payee to plaintiff.
The sole question' argued, and the only question, therefore, for consideration is: Was there any proof in this case of a transfer of the notes ? Section '62 of the Civil Code provides, among other things, that when an action is brought upon a written instrument and the complaint contains a copy of it, its genuineness and due execution are admitted unless the answer denying the same is verified. Copies ‘of these notes were set out in the complaint, and neither the complaint nor the answer was verified. It is virtually conceded, however, that this section does not apply to an action by an endorsee against the maker of a note. Whether it would apply where an endorsee sues an endorser, is not an issue here.
The authorities seem to be in accord with the concession of the parties.—14 Enc. Pl. & Pr. 665-6; Mahe v. Reynolds, 38 Cala. 561; Spicer v. Smith, 23 Mich. 96; Hinkley v. Weatherwax, 35 Mich. 510. We, therefore, may assume, for our present purpose, that the unverified- answer put in issue the allegation in the •complaint of the transfer of the note by the payee to the plaintiff, and that one who claims by' endorsement
It seems to be the rule that some proof of transfer is necessary in cases of this sort. The notes were admitted without any specific evidence of the signature of the payee. It is a well established rule, however, that possession and production of a promissory note by the plaintiff at the time of the trial is sufficient prima facie proof of his title thereto (Palmer v. Gardiner, 77 Ills. 143-146; Morris v. Preston, 93 Ills. 215); so it has been frequently held that possession of a note payable to bearer is prima facie evidence of title in any holder. — 2 Daniel on Negotiable Instruments (4th ed.), § 1191. In section 1192b of the same •work it is said that production of a note endorsed by the payee makes a prima facie case for the plaintiff. See, also, Hays v. Hathorne, 74 N. Y. 486. At section 1200 is the statement that possession of a note is prima facie evidence that the same was endorsed by the person by whom it purports to be endorsed, and •to this are cited Bank v. Mallan, 37 Minn. 404; Tarbox v. Gorman, 31 Minn. 62; First Nat. Bank v. Loyhed, 28 Minn. 396. But these cases were based on a statute so providing.
As these notes, with what purported to be an endorsement upon them by the payee, were delivered to the plaintiff, he might have altogether disregarded the endorsements, or written transfers, and relied on delivery and possession alone. He was entitled to the judgment which the court gave him for it appears that he had possession of the notes and produced them at the trial, and thereby established prima facie his title thereto. Defendants not having, or establishing, any defense to the notes at the time they received notice of the alleged transfer, or at any other
Affirmed.