56 N.J.L. 312 | N.J. | 1893
The opinion of the court was delivered by
This action was tried at the Circuit, and the court directed the jury to find for the plaintiff for the full
The Merrill Trust Company brought suit upon two promissory notes made by Louis A. Haines to the order of Ezra F. Merrill. The defence interposed was that the notes were procured by false and fraudulent representations on the part of Ezra F. Merrill, the payee. The trust company claimed that it was a bona fide holder of these notes for value before maturity. The court directed a verdict for the plaintiff apparently upon the ground that the fraud of Ezra F. Merrill was no defence as against the plaintiff. The question to be determined in this case is raised by the following assignment of error: “ That the Circuit judge at the trial overruled the defendants defence and directed the jury to find for the plaintiff company $4,670.53, as the amount of the notes in suit, with interest.”
The question presented in this case is, was there sufficient evidence to go to the jury—first, upon the alleged fraud of Ezra F. Merrill, in obtaining the notes in question? and second, if such fraud is proved, did the plaintiff become the owner of these notes before maturity, bona fide and for value? The easels presented by the plaintiff to the trial judge seems to rest only on the second question, that of the bona fidps of plaintiff, and the obtaining by the company of the notes for value before maturity.
That there was sufficient evidence of fraud on the part of Ezra F. Merrill in the inception of these notes to go to the jury, on the first question, is clear. If the suit had been between Ezra F. Merrill, as plaintiff, and Louis A. Haines, as defendant, and the jury had found for the defendant, no court would have disturbed that verdict upon the evidence in this case. The fraud alleged, if found by the jury, was such that the defendant would have been justified (as against Merrill) in rescinding the notes. Conlon v. Roemer, 23 Vroom 53. The real question in the case is whether, admitting the fraud of Ezra F. Merrill, the payee of these notes, can this fraud be charged against the plaintiff so as to invalidate these
The trial judge took this case away from the jury and directed a verdict for the plaintiff. This direction is error, “ where the evidence is such that a contrary verdict would not be set aside, on the ground that there was not enough evidence to sustain it, or that it was clearly against the weight of evidence.” Delaware, Lackawanna and Western Railroad Co. v. Shelton, 26 Vroom 342, 345. The rule is also stated as follows: “It is well settled that a jury should be controlled in its verdict by a peremptory instruction only where the testimony is of such a conclusive character as would compel
The defendant having shown fraud in the inception of the notes sued on sufficient to go to the jury, did the plaintiff prove by uneontradicted and unimpeachable evidence that the Merrill Trust Company obtained these notes before maturity, bona fide and for value ? This proof on plaintiff’s part rests upon the testimony of Ralph F. Alvord. It will be sufficient to dispose of this case to say that his testimony is unsatisfactory, and that a verdict which disregarded it, under the suspicious circumstances of this case, would not be set aside as against the weight of evidence.
The evidence in this case shows that the first note was dated Atlantic City, September 6th, 1889, and was .for $3,600, drawn to the order of E. F. Merrill, payable at the Atlantic City National Bank twelve months after date. It was endorsed “E. F. Merrill” and also “Pay to the order of the Atlantic City National Bank for collection. Merrill & Alvord.” The protest of the note shows that it was in the hands of the Atlantic City bank at maturity and that it was protested for non-payment, at the request of said bank, September 9th, 1890. The second note, for $333.33, was dated Cleveland, Ohio, January 9th, 1890, drawn to the order of E. F. Merrill, payable eight months after date, with interest. It was endorsed “Pay to the order of A. E. Alvord. E. F. Merrill.” And also “ Pay to the order of the Atlantic City. National Bank for collection. A. E. Alvord.” The protest of this note also shows that it was in the hands of said bank at maturity and that it was protested for non-payment, at the request of said bank, September 12th, 1890.
The $3,600 note was given by the defendant to E. F. Merrill for the purchase of three shares of the stock of the Haverhill Roller Toboggan Company, owned by Merrill and
These facts and the other evidence in the case would have sustained the verdict of a jury if it had held that the plaintiff
The case should have gone to the jury on the whole evidence, under proper instructions from the trial judge. The Circuit judge having taken the case away from the jury, the judgment below should be reversed and a new trial ordered.
For affirmance—Garrison, Bogert. 2.
For reversal—The Chancellor, Chief Justice, Abbett, Depue, Dixon, Ltppincott, Yan Syckel, Krueger, Phelps, Smith. 10.