221 N.W. 10 | Minn. | 1928
Plaintiff sues to recover on four $500 promissory notes. One England was a banker at Lamberton. On March 5, 1920, he sold a 160-acre farm to defendant under a contract for deed which contained a provision that if after two years from the date thereof defendant did not want the land England would take it back and pay back the money which defendant had paid. England took, with the contract that he got from defendant, notes including the ones here involved for deferred payments. Two years later defendant exercised his privilege under the contract and surrendered the land to England, who told him he had used the notes as collateral *289 but that he would get them and return them. This was never done.
Plaintiff is a farmer and lives in Wisconsin. He and England were raised in the same community and were friends. England visited Wisconsin from time to time. He told plaintiff that if he had any money to invest to send it to him to be invested in safe and good securities. On March 16, 1920, plaintiff, trusting England to do as he agreed, sent England $2,000 for such purpose, and England sent plaintiff four of the notes so given with said contract. England indorsed and guaranteed the notes. He paid one year's interest on the notes.
Plaintiff knew nothing about defendant, made no inquiry concerning him, and did not write to him until the fall of 1926 when he for the first time learned the facts.
Defendant's offer of proof to establish his claim that England procured the notes through fraud was excluded. For the purpose of this case we will assume that the notes were so procured.
The trial court directed a verdict for plaintiff.
1. Every holder of promissory notes is deemed prima facie to be a holder in due course; but when notes are procured by fraud the burden is on the holder to prove that he or some person under whom he claims to have acquired the title is a holder in due course. G. S. 1923, § 7102; Goedhard v. Folstad,
2. Defendant contends that it was for the jury and not the court to determine upon the record before us whether plaintiff has sustained this burden of proof.
Plaintiff's case rests alone upon his own testimony and his exhibits. He bought these notes without any regard to the maker's integrity or financial condition. He made no investigation concerning the maker. His confidence and trust were in England, who guaranteed the notes. He naturally is an interested witness in the case. He and England were friends.
From this state of facts and circumstances it is urged that the court was required to submit to the jury the question as to whether plaintiff had sustained the burden of proof, particularly involving *290
the elements of interest of the plaintiff as a witness, good faith, value, and want of notice of the fraud. It is true that ordinarily the credibility of interested witnesses and generally the interest or want of interest of a witness are for the consideration of the trier of fact. But these general rules are subject to another well established rule, namely, that clear, positive, direct and undisputed testimony, not improbable or contradictory, given by an unimpeached witness, cannot be rejected or disregarded by either court or jury, unless the evidence discloses facts and circumstances which furnish a reasonable ground for so doing. Such testimony can be rejected only when doubt is cast upon its truthfulness by contradictory or discrediting facts and circumstances. The testimony of a witness may be disregarded if it contains inherent improbabilities or contradictions which, alone or in connection with the other circumstances in evidence, furnish a reasonable ground for concluding that the testimony is not true. Goedhard v. Folstad,
It is argued that the jury might have found a verdict for the defendant; that the jury may have concluded that plaintiff, being a friend of England, was merely a means of collecting and that because thereof he made no investigation. If so, such verdict would be based upon speculation and conjecture and rest wholly in the minds of the jurors and would not be supported by the record. The law will not permit a credible witness to be discredited by the trier of fact merely because such witness is a party to the action. None of the cases go so far as to hold that the interest of a witness in the outcome of the action, standing alone and without any inherent *291 weakness or other facts and circumstances shown tending to weaken, contradict or impeach his testimony, is sufficient to permit the jury to reject it.
3. To constitute notice of the fraud involved it must be made to appear that the person to whom the paper is negotiated must have had actual knowledge thereof or knowledge of such facts that his action in taking the paper must have amounted to bad faith. G. S. 1923, § 7099; Allen v. Cooling,
4. Some cases involve facts and circumstances which lead to the conclusion that failure to make inquiry or investigation as to the maker will be an important factor in carrying the case to the jury. Sorenson v. Greysolon Co.
5. The indorsement on the notes was made with pen and ink in this form: "Pay to the order of Herman Olsen, payment guaranteed. H. M. England." Below the indorsement was a pencil writing in these words: "To draw seven per cent from 3-5-1920." The notes drew six per cent. The indorsement in ink is a complete, special indorsement. G. S. 1923, § 7077. The pencil memorandum is no part of it and in no way impeaches the indorsement or guaranty. It neither restricts nor qualifies the indorsement, within the meaning of G. S. 1923, §§ 7079 and 7081. It is surplusage and has no legal significance as between the parties to this action; nor is it of such character as to put the indorsee upon inquiry.
6. It is also urged upon authority of Bank of Montreal v. Richter,
7. The record is sufficient to justify the conclusion that plaintiff authorized England to select and buy securities for him as his agent. But the fact is he did not do so. He sent to plaintiff his own notes, which act was so inconsistent with the exercise of the authorized agency that we hold that the relation of principal and agent is not involved.
8. The testimony of the plaintiff is not impeached nor inherently improbable; and the inferences to be drawn from all the circumstances do not lead to different conclusions by reasonable men. Neither the friendship between plaintiff and England, nor the surplusage below the indorsement, nor the want of inquiry or investigation as to the maker, nor the interest of the plaintiff, nor all of these combined afford an opportunity for a jury to destroy the *293
advantages which the commercial law confers upon a bona fide holder of negotiable paper. That plaintiff acted in the ordinary course of business cannot be doubted. The record shows that he acquired the notes in ignorance of the fraud and in good faith. He paid the face of the notes and acquired them long before maturity. This was sufficient. Harwood State Bank v. Hendrum Co-op. Elev. Co.
Affirmed.