58 S.W. 721 | Tex. | 1900
Lead Opinion
This case comes to us upon a certificate showing the following statement and question:
"A negotiable promissory note executed by Cheney R. Prouty to James Riddle, payable to the latter's order, was transferred by the payee before maturity for valuable consideration to Sarah E. Eager, by delivery only, — that is to say by parol delivery without indorsement. Mrs. Eager assigned it to Rafael Musquiz. The above is a theory of fact presented by the record material to the case.
"In such case, is the burden of proof upon Musquiz, the holder of the note, to show that Mrs. Eager had no notice of the maker's defenses, discounts, or set-offs, against the note, or was the burden upon Prouty, the maker, to show that she had such notice when she acquired the note?"
Article 307 of our Revised Statutes is as follows: "Any person to whom any of the said negotiable instruments may have been assigned, *91
may maintain any action in his own name which the original obligee or payee might have brought; but he shall not only allow all just discounts against himself, but, if he obtained the same after it became due, he shall also allow all just discounts against the assignor before notice of the assignment was given to the defendant; but should he obtain such instrument before its maturity, by giving for it a valuable consideration, and without notice of any discount or defense against it, then he shall be compelled to allow only the just discounts against himself." This statute was construed by this court in the case of Word v. Ellwood,
The brief of appellee indicates that the facts alleged in bar of a recovery arose after the execution of the note, and that the defense was not on account of fraud in its inception. If the certificate had so shown, an answer would not have been difficult. But the statement and question, as shown by the certificate, are very general, and to them we are confined. We therefore answer hypothetically.
If the note was procured by fraud, and if the plaintiff proved that Mrs. Eager paid value for the note before its maturity, and if there were no facts in evidence tending to show bad faith in the transaction upon her part, or if the defense arose after the execution of the note, then, in either event, the burden was upon the plaintiff to show that she had notice of the defense. *93
Addendum
Our attention has been called to the fact that in our opinion filed in this case a mistake was made in the answer to the question certified. In course of that opinion, we say: "The weight of authority as we think is, however, that when he has shown that he has paid value in the usual course of business and the circumstances attending the transfer cast no suspicion upon the fairness of his intent, he need go no further, and it then devolves upon the defendant to show notice to him in order to defeat a recovery." There is nothing said by us in the discussion to indicate that we intended to hold contrary to the weight of authority, and it is therefore evident that our purpose was to answer that the burden was upon the defendant to show notice when the plaintiff had proved that he procured the paper for value before maturity and under circumstances creating no suspicion of bad faith on his part. The mistake was the mistake of the writer, and it was not discovered by his associates when the opinion was read to them for approval.
It is proper that the mistake should be rectified, and therefore, of our own motion, we order that the specific answer given in our former opinion be set aside, and that in lieu thereof the following answer be certified to the Court of Civil Appeals for the Fourth Supreme Judicial District for their observance: "If the note was procured by fraud, and if the plaintiff proved that Mrs. Eager paid value for the note before its maturity, and if there were no facts in evidence tending to show bad faith in the transaction upon her part, or if the defense arose after the execution of the note, then, in either event, the burden was upon the defendant to show that she had notice of the defense."
Filed November 12, 1900.