107 Neb. 672 | Neb. | 1922
This action was brought in the district court for Franklin county, upon a promissory note, executed by the defendants in the sum of $2,500. The defendants contend that there was no consideration for said note; that it ivas a renewal and given in payment of a note obtained from the defendants by the Missouri Valley Cattle Loan Company by fraud, and that said original note ivas purchased by said plaintiff bank with knowledge of such fraud in its inception, and that when same became due, defendants, without knowledge of the falsity of said representations or discovery of the fraud, signed the renewal note. The plaintiff in reply filed a. general denial and further alleged that plaintiff purchased, in the regular course of business, and before it was due, and in good faith, and for valuable consideration, and without any notice of any infirmity in the note or defect in the title of the Missouri Valley Cattle Loan Company, a note given by the defendants to said Missouri Valley Cattle Loan Company in the sum of $2,500, and that thereafter, on the 6th day of February, 1920, the defendants paid said note by giving to plaintiff the note mentioned in. plaintiff’s petition, and the defendants
The pleadings and the evidence of defendants in this case are identical with those in Auld v. Walker, p. 676, post. In that case we determined that the note in suit was a renewal note, and that fraud was proved in the inception of the original notes, and this phase of the case need not be further discussed.
Where both parties, at the close of all the testimony, move for a directed verdict, the whole case is thereby submitted to the trial court, and its findings of fact take the place’ of a verdict of the jury, and should not be set aside unless, upon the whole record, it appears to be clearly wrong. Krecek v. Supreme Lodge, 95 Neb. 428. Therefore, the sole question presented is whether there is sufficient evidence to support the verdict and judgment.
The defendants having proved their defense of fraud in the inception of the note, the burden was then on the plaintiff to prove by a preponderance of the evidence that it was a holder in due course. To sustain this burden the plaintiff produced the president of the plaintiff bank and the president at the time of the purchase of the original note, who testified that the bank purchased the note for value, in the regular course of business, in good faith, and without notice of any infirmities in the note. They, however, admitted that the negotiations and transaction regarding the purchase of the note from the agent of the Missouri Valley Cattle Loan Company were conducted through N. R. Morrow, at that time cashier of the plaintiff bank, and that they had no knowledge of his statements or knowledge re
Morrow testified as a witness in the case, but was not asked and did not testify regarding his knowledge of infirmities in the note, nor did he deny the conversations alleged to have been had with the defendants. When it was shown by the defendants that the note was obtained by fraud practiced upon the defendants, the plaintiff, in order to recover, must prove that all the officers or agents of the bank who took part in the negotiations for the purchase of the note did so in good faith, without notice of any defenses or infirmities in the note. In this case the officers who had nothing to do with the transaction testified that- they had no notice or knowledge of any defenses or infirmities in the note, but the cashier of the bank who purchased the paper, and who had conversations with the stock salesmen and with the-defendants, and who in fact- had exclusive charge of the transaction, very carefully refrained from going into the transaction at all, though he was a witness for the plaintiff bank.
Under this state of the record, we think the plaintiff
The trial court therefore erred in directing the jury to return a verdict for the plaintiff, and the judgment is therefore reversed.
Reversed and- remanded.
