173 N.W. 736 | S.D. | 1919
Action upon a promissory note for $312.50, evecuted -May 23, 1916, to the order of himself, indorsed by him' and subsequently acquired by plaintiff. Defense: That it was procured by fraud, and that plaintiff was not a holder in due course. Verdict and judgment for defendant. Plaintiff appeals from the judgment and an order denying a new trial.
It appears from the evidence that the note was delivered to one McDonald for shares of. stock in the Dakota Underwriters’ Company then being promoted by him; that McDonald purchased an automobile from'. plaintiff, who was engaged in the automo
“You are further instructed in this connection that the party who takes the note as the plaintiff in this action has taken this, must use such means as an ordinary prudenc person would use in the ordinary affairs of life to ascertain .whether or not the note itself was free from infirmities, and whether or not the person negotiating it had title, thereto, or whether in other words, the person negotiating it had a title that was not defective; and in that connection the court further instructs the jury that the purchaser of a promissory note can not rely alone upon the fact that he has no information of any defense, defect of title, or infirmity in or to the same, in order to. constitute him a purchaser in good faith, but he must go further and show that he used the means that an ordinary prudent person would use to ascertain the manner in which the note was obtained from the maker. He is not permitted to refrain from making inquiry but the burden is upon him to show that he had used the ordinary means to ascertain whether or not the note is valid in the hands of the vendor, and that question is a question of fact, for you to pass upon and examine from all the evidence that has been introduced in this case.”
No exception was taken to that instruction, so that the correctness of the instruction as such is not before us. It is only
“In the United States the decisions of the courts have varied,some following the rule declared in Gill v. Cubitt, 3 B. & C. 466 (citing in a note three of the decisions of this court above lamed), but by far the greater number concurring in the principle which has been finally established as the law of England. Chancellor Kent, in his- Commentaries, embodies the views taken in Gill v. Cubitt; but at that time the present prevailing doctrine hi d not been re-established, and it is to -be supposed that he merely incorporated in his text the then existing decisions of the English courts. But both upon principle and authority, it is safe to say that the experience of the commercial world, -and of the courts before which the doctrines here discussed have so often passed in review, have satisfied jurists, as well as men of business, that the .interests of commerce are best subserved by the liberal view which promotes the circulation of negotiable instruments ; and that the bona fides of the transaction should be the decisive test of the holder’s rights. It is not the duty of parties about to purchase negotiable paper to make any inquiries not required by good faith, as to possible defenses of which they have no notice, either from the face of the paper, or facts communicated at the time.”
In section 776 the author, after quoting section 56 of the Negotiable Instruments Law, says:
“It thus appears that the majority rule referred to in the foregoing discussion that there must have been actual notice or bad faith, has -been codified in those states which have enacted the statute. According to that rule, and under the statute, mere*158 suspicion oí defect of title or knowledge of circumstances which would excite suspicion in the mind of a prudent man, or even gross negligence on the part of the taker of the instrument at the time of the transfer, will not defeat his title. While neither gross negligence, nor knowledge of suspicious circumstances, of itself constitutes bad faith as -matter of law, it is evidence from which bad faith may be inferred, and such facts when proven may be considered by a jury in arriving at the ultimate fact of good or bad faith. What constitutes this actual knowledge of bad faith, under the statute, has been the subject of judicial discussion. Bad faith in taking commercial paper, it has been said, does not necessarily involve furtive motives. It may be shown by a willful disregard of and refusal to learn the facts when available and at hand, and if a purchaser of a note for value before maturity has notice . of facts tending to show defenses to the same, he cannot purposely refrain from making inquiries as to the inception of the paper, and at the same time claim to be a bona fide purchaser.”
In Crawford’s Ann. Neg. Inst. Law the following appears as one of the notes under section 56 of the law:
“The rule adopted in the statute is that which was established by the great weight of authority. In numerous well-considered cases it was held- that the holder is nor bound at his peril to be on the alert for circumstances which might possibly excite the suspicion of wary vigilance; he does not owe to the party who put the paper afloat the duty of active inquiry in order to avert the imputation of bad faith. The rights of the holder are to be determined by the simple test of honesty and good faith, and not by a speculative issue as to his diligence or negligence. The holder’s right cannot be defeated without proof of aeiual notice of the defect in title, or bad faith on his part evidenced by crcumstances. Though he may have been negligent in taking the paper, and omitted precautions which a prudent man would have taken, nevertheless; unless he acted mala fide, his title, according to settled doctrines, will prevail.”
It thus appears that by the adoption of the Negotiable Instruments Law this jurisdiction has repudiated the minority rule and acquiesced in the majority rule. Under that rule the trial court should have directed a verdict for plaintiff. There is no
The judgment and order appealed from are reversed.
