32 S.C. 538 | S.C. | 1890
The opinion of the court was delivered by
This case was once before in this
Accordingly the case went back, and upon the second trial the plaintiff introduced the same evidence as in the first. James M. Buford and George M. Loosley, residents of Rock Island, Illinois, testified by commission as follows : The first that he made the endorsement on the note in blank himself as the assignee of B. D. Buford & Co., and produced the deed of assignment to himself. The latter testified that he was the cashier of the plaintiff corporation on and before February 9, 1885, and that on that day the plaintiff corporation discounted the note at their banking house for value in the usual course of business, and that the plaintiff corporation had no notice whatever of any defence or off-set to the note. There was also evidence tending to show that the purchase of the agricultural implements was sometime in the year 1883; that the account was not closed by note until July 1, 1884, which was not due until nine months thereafter (April, 1885), and that up to within a few days of that time (March 13, 1885), the defendants, in asking for indulgence, wrote that the note is drawing interest, and you will not lose a single cent of it,” &c.
Upon the charge of the judge (which should appear in the report of the case), the jury again found for the defendants. The plaintiff’ bank moved for a new trial, which the Circuit Judge, on November 9, 1888, granted. But soon after he requested a reargument of the motion for a new trial, and on November 13 he passed the following order : “After granting the foregoing order, I reflected upon its propriety, and being not entirely satisfied that I did right in setting aside this second verdict of the jury in favor of the defendants, I requested reargument of the matter. After this reargument I am of opinion that the above order should be rescinded. There was evidence tending to sustain the defence, which the jury weighed in favor of the defendants, all issues of fact- were fairly submitted, and for a second time they found for the defendants. Very strong circumstances were adduced going to sustain defendant’s case and to contradict the plaintiff’s testimony. It is ordered, therefore, that the above order be rescinded and a new trial.be refused,” &c.
Without going into the question as to whether the Circuit Judge had the right to rescind his own order granting a new trial, we think his first impression was right. We have, for the second time, looked carefully through this whole case, and we are unable to see any substantial difference between the defence as made on the second trial and that made on the first. It seems to us, to allow this verdict to stand, would be not only to disregard the rulings upon the former appeal, but to ignore the old well settled principle of commercial law — that if a promissory note, not yet due and fair upon its face, is transferred to a bona fide holder for .value, without notice of any defence, which may exist between
We entirely agree with what the Circuit Judge said in his charge. “The bank is bound to recover, unless there was a conspiring against the defendants, to get rid of this plea of failure of consideration, and the Rock Island Bank was used as a cat’s paw. In order to establish that, certain declarations from B. D. Buford, or one of the Bufords, and also another one, are introduced here— some conversation of Mr. Gage, some statement of a letter he had, and the contents of the letter. Not a single word that Buford said, not a single word that another one said, would bind the bank, if it were done after the bank became the owner of the paper, and unless the party were the actual agent of the bank, after it became the owner of the paper. Buford could not say anything to hold
Under the proof in this case, we cannot think that such notice of the defence now made was so fixed upon the bank, before it discounted the note on February 9, 1885, as to authorize the admission of testimony as to the alleged guaranty, that the agricultural implements would “prove satisfactory,” or as to the alleged failure of consideration. This being the case, we think it was error to admit that evidence. Nor can we say that the error was cured by its “admission, subject to objection.” That may be done in some cases where the court is to pronounce the judgment. But in a trial by jury, such evidence may have its effect simply by being admitted at all. See Bonham v. Bishop, 23 S. C., 105.
The judgment of this court is, that the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.