75 W. Va. 793 | W. Va. | 1915
By this writ of error defendant seeks to reverse a judgment recovered against him by Jason Manchester and L. M. Elliott, upon notice, and motion, under the statute. The recovery was. upon a negotiable note made by defendant, payable to Burton & Co., a partnership composed of L. A. Burton and D. J. Grindell, and indorsed to plaintiffs. Defendant filed three-pleas on which issues were joined. The substance of the pleas are: (1) that defendant had discharged the note by payment to the legal owner and holder, before the suit was brought; (2) denial that plaintiffs are tona fide holders for value in due course; and (3) that the name of Burton & Co., indorsed on the note, is not the firm’s genuine signature, and was not placed there by any one having authority from them to do so. This last plea is verified by affidavit.
After the evidence had all been introduced, the,court, on motion of plaintiffs, excluded defendant’s evidence, 'and directed the jury to return a verdict for plaintiffs. A motion to set aside the verdict was overruled, exceptions taken, and judgment entered.
Burton & Co. was a Kenton, Ohio, firm, engaged in importing and selling horses for breeding purposes. Defendant lived at Parsons, West Virginia, and was engaged in breeding horses. The note is for $800, payable eighteen months; after date, to the order of Burton & Co., at the First National Bank of Parsons, with six per cent, interest, and bears date-September 22,1910. It is proven that the note was negotiated to plaintiffs by one Lee Whorton, about the 1st of November, 1910. Whorton was then employed in selling horses for-Burton & Co.
Defendant’s pleas set up affirmative matters entailing on Mm the burden of proof. Any one of them, if sustained, would defeat recovery. But there-is no evidence to support any of them. To sustain his first plea, defendant proved that on the 3rd of June, 1911, he sold and delivered to Burton & Co. some Perdieron colts for $1,675, with the understanding- and agreement that it was to pay his note, and that they were to execute to him their note for the balance. lie produced a letter from D. J. Grindell, then a member of the firm but now
There is, likewise, no evidence to support defendant’s second plea. Every holder is deemed prima facie, to be a holder in due course. Sec. 59. And, if it be assumed that proof of payment to Burton & Co., before the note was due, shows such defect in their title as casts upon plaintiffs, the holders, the burden of proving that they acquired title in due course, still they have fully discharged the burden. They prove that they purchased the note, about November 1st, 1910, and paid value therefor. There is no conflict in the testimony on that point.
There is, however, some conflict in the testimony respecting the genuineness of Burton & Co.’s signature indorsed on the note, an issue presented by the third plea. Still, in view of
There is no evidence upon which the jury could have returned a verdict for defendant, and, according to the well established rule of practice, the court properly directed them to find for plaintiffs. Diddle v. Casualty Co., 65 W. Va. 170; Butcher v. Sommerville, 67 W. Va. 261; and Vance v. Virginia Pocahontas Coal Co., 74 W. Va. 728, 82 S. E. 1081.
The judgment is affirmed.
Affirmed.