56 Barb. 593 | N.Y. Sup. Ct. | 1870
By the Court,
The rule is conceded, that if a negotiable note, transferrable by delivery, be stolen and afterwards be negotiated to one having no knowledge of the fact, for value, in the usual course of business, and before the note is due, the purchaser acquires a valid title. (2 Pars, on Notes, 255, and cases cited.) The verdict of the jury has determined that the defendants had had notice that these notes were stolen, and that they bought them after receiving such notice. That the defendants paid the market value for the notes, and that they bought them in the usual course of business and before due, is not controverted. It is also proved, and not contradicted, that the defendants, at the time when the purchase was made, had no knowledge or suspicion that these bonds had been stolen, nor any intimation of any question about the seller’s title. In other words, they had forgotten the notice the plaintiff had given them, and did not recognize these notes, although they had a perfect description of them.
Under these circumstances, the defendants asked that a verdict might be directed in their favor. Upon well
The court, however, charged the jury that “the defendants once having had notice, are bound by it, although the notice may have been forgotten, and they cannot, under the circumstances of the case, be purchasers in good faith, although,” &c.; and to this charge the defendants excepted. The receiving of the notice before the purchase of the bonds, being admitted by the defendants, this charge was in substance a direction to the jury to find a verdict for the plaintiff for the value of the notes and interest.
If the rule is well founded, that notice once given is good for ever—that knowledge acquired when notice is given, is conclusive evidence of knowledge possessed when the notes were bought—then this charge is correct. But if the bonafides of the defendants must be judged of from their acts, purposes and knowledge as they existed upon the day of the purchase, then the notice served is only prim,a facie or presumptive evidence of malafides, and may be rebutted by proof that the notice was lost, or its existence and contents forgotten. The sufficiency and reasonableness- of the explanation must then be submitted to the jury in connection with the other facts, in the case, e. g. the length of time since the notice was given, and its particularity ; the character of the stolen property; the rarity or frequency of the defendants’ dealings in such property; the ease or difficulty of identifying it; the degree of watchfulness and amount of labor that would -be required to discover it, &e. In the case of bank bills it is easy to see,
The case of Raphael v. Bank of England (supra) is directly in point, and sustains fully the latter view. It holds that forgetting or omitting to look at the -notice at the time of the purchase is not evidence of mala fides, but is evidence of negligence; that the question of good faith was for the jury; that the plaintiff having shown that he bought the note for value, in the ordinary course of business, and without present knowledge of the robbery, the burden of proof was thrown upon the other party to establish the mala fides of the purchaser; that knowledge of the robbery, at the date of the purchase, was essential to bad faith.
The only serious question in that case arose from the fact of a notice of the robbery having been given before the purchase. The courts decide that such notice is not conclusive. The courts of our State in deciding who are bona fide holders, and what is evidence of bona fides, cite as authority that case. (Magee v. Badger, and Belmont Bank v. Hodge, supra.) That would seem to be such a recognition of the principles therein enunciated as to establish their authority with us. If it be so, then I am reluctantly compelled, in opposition to my first impressions, to hold that the court erred in charging too broadly as to the effect and consequences of a notice once given, upon the subsequent conduct and position of the party notified.
For that reason the motion for a new trial should be granted, with costs to abide the event.
Balcom, Murray, Parker and Boardman, Justices.