41 Kan. 265 | Kan. | 1889
Opinion by
The defendant in error suggests that the case-made fails to show that all the evidence introduced' at
The defendant in error, as plaintiff, brought an action upon a promissory note for $820, signed by defendant on July 22, 1882, made payable to the order of M. II. Brown, and by him indorsed. The plaintiff claims to have bought the note in good faith before maturity; the defendant establishes by proof that the note was given by him to BroAvn as an earnest of good faith in a contract between himself and Brown to sell the right to put up a patent slat-wire fence in certain territory of Lyon and Chase counties. At the time of the giving of the note, the following contract was made:
“Emporia, Kansas, July 22, 1882.— I hereby agree to cause the sale of five miles of my fence in the district controlled by R. H. McCormick, before September 1, 1882, with his assistance, or return all notes, papers, etc., to him.
B. B. Bernard, per M. H. Broavn, Gen. Agt.”
The contract and note were put in an envelope; Brown and defendant took them to the Merchants’ Hotel in Emporia to leave with the landlord; Avhen they reached there he was absent, and Brown placed the package in a drawer of a table in the office of the hotel, and the landlord’s wife said she would turn the envelope over to her husband. This was the
Defendant claims there was no delivery of the note. We believe, under the evidence in this case, this defense cannot be interposed against plaintiff if he is the purchaser of the note in good faith before maturity. (Whitmore v. Nickerson, 125 Mass. 496; Clarke v. Johnson, 54 Ill. 296; Burson v. Huntington, 21 Mich. 415; Angel v. Insurance Co., 92 U. S. 330; Morris v. Morton, 14 Neb. 359; Randolph on Commercial Paper, §230; Daniel, Neg. Inst., §854, etseq.)
On the 24th day of July, 1882, Brown brought the note to plaintiff for sale, and one given by Clarke, also payable to his order. He purchased the note against Clarke, but did not buy the one sued on, at that time. He told Brown that if he would get a statement from defendant that the note was all right he would buy it; Brown afterward produced a statement purporting .to be that of defendant, and which plaintiff then believed to be genuine, but now conceded to be a forgery; plaintiff then bought the note, paying $250 therefor. Plaintiff testified — and it is all the positive testimony on that subject— that he had no knowledge when he bought the note of the transaction out of which it was given other than what appeared from the face of the note and the statements of Brown; and he says the only reason he wanted a statement from the defendant was that one Griffith had told him “ that defendant would pay what he promised to, though he owned but eighty acres of laud;” “that he might not be legally good, but was really good for all he said he would pay.” After the introduction of all the testimony at the trial, the court, over the objection of the defendant, instructed the jury as follows:
“This ease has been tried three times. The evidence has been the same every time. I have felt the necessity of setting aside two verdicts because I did not agree with the jury, and I will take the responsibility now of ordering a verdict.”
He then directed the jury to ascertain the amount of the note, and return a verdict therefor for plaintiff.
The defendant urges that the burden of proving the plain
Under the evidence, we think the instruction of the court ordering a verdict for the plaintiff was correct. He was an innocent purchaser of the note for value before maturity, and the defenses that might have been set up> against the original payee of the note could not avail against one who purchased it in good faith. We recommend that the judgment be affirmed.
By the Court: It is so ordered.