95 Neb. 314 | Neb. | 1914
This is an action upon four promissory notes for $50 each. The defendant alleges that the notes were obtained by fraud, and that he has received no value therefor. The plaintiff denied that the notes were obtained by fraud, and alleges that he is an innocent purchaser and as such is entitled to recover thereon. Upon trial in the district court for Colfax county, there was a verdict and judgment in favor of the defendant, and the plaintiff has appealed.
It appears that in July, 1908, the defendant was in business in Surprise, Nebraska, and entered into a contract with the Overland Manufacturing Company for the purchase of a bill of jewelry. The contract provided that the defendant might at any time after four months and within a year return any or all of the articles so purchased and receive credit therefor on certain conditions. The defendant sold a small amount of the jewelry, and after-wards returned the remainder under the contract and paid the company for the jewelry that he had sold. The contract price for the jewelry was $220, and the last three lines of the contract were, in substance, a promissory note, and, while they were a part of the contract and were evidently so signed, these lines were so arranged and the paper was so perforated that they could be easily detached and would then appear as a promissory note. After the defendant had returned the goods and the transaction was apparently closed, one R. B. Zachery appeared with this detached note and presented it to the defendant for payment.
The original contract signed by the defendant was manifestly fraudulent, and this appears to be conceded. The uncontradicted evidence was that, when Zachery presented this paper to the defendant for payment, the defendant refused payment, and Zachery represented to him that the paper which he held was the property of a responsible Omaha bank; that the bank was an innocent purchaser;
It is suggested that this evidence is not sufficient to show that the notes in suit were obtained by fraud because there is no evidence that the paper which Zachery presented was not the property of a responsible bank, nor that the bank which owned it was not an innocent purchaser, nor that Zachery did not represent the bank in good faith. If the defendant was liable upon .the paper as presented by Mr. Zachery because the owner of the paper was the holder thereof in good faith, having so purchased it for full value in the usual course' of business, it would furnish' sufficient consideration for the notes in suit; but that was ¿n issue that it devolves upon the plaintiff to establish to enable him to recover upon the strength of the title and possession of the bank, and there is no evidence in the record of the truth of Zachery’s representations, or that the paper which he presented was the property of any bank, much less that the bank was the owner and holder of the paper as a purchaser in good faith. It follows that these notes were fraudulently obtained, and that the plaintiff cannot recover thereon unless he was a purchaser of the notes in good faith, for value, in the usual course of business, and without notice. Our negotiable instrument act (Rev. St. 1913, secs. 5369-5377) has not changed this rule. Piper v. Neylon, 88 Neb. 253.
The plaintiff does not allege in his petition that he purchased the notes in good faith, in the usual course of business, for a valuable consideration, and without notice of • any defense thereto; nor does he plead in the language of the statute “that he became the holder of it before it was overdue; * * * that he took it in good faith and for value; * * * that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it.” Rev. St. 1913, sec. 5370. He alleges that Zachery sold the notes in good faith, for a valuable consideration, and transferred them to the plaintiff, and that the plaintiff is now the
We do not find that in this case we must overrule the judgment of the trial court and direct and control the jury as to the verdict. It follows that the judgment of the district court is
Affirmed.