28 Mo. App. 365 | Mo. Ct. App. | 1887
Lead Opinion
This was a suit upon a negotiable promissory note executed by the defendants to B. F. Bassett, agent of the estate of R. Long, deceased, and by him, as said agent, endorsed and transferred to the plaintiff.
The defendants, in their answer, alleged that they were induced to execute the note in suit by certain false and fraudulent representations made by said Bassett; and that said note was procured by said Bassett by cer
The plaintiff, after introducing the note in evidence, without waiting for any testimony on the part of the defendants, showing that it had been obtained by fraud, introduced his' own testimony tending to show that he was a bona-fide purchaser for value, before maturity, of the note sued on. The defendants introduced testimony tending to show the fraud, and false and fraudulent representations alleged in the answer, and that the note was procured thereby and was without consideration. The defendant, Althouse, testified to statements made by the plaintiff, from which it might have been inferred, as those statements were left unexplained by the plaintiff, that the note was taken by the latter on account of an antecedent debt owed by Bassett to him.
Under this state of the evidence the court instructed the jury to find for the plaintiff in the sum claimed by him. In so doing the court erred. The court should have submitted the whole case to the jury by proper instructions. This matter has been fully discussed and determined in Johnson v. McMurry (72 Mo. 280), and Carson v. Porter (22 Mo. App. 184). The jury were the sole judges of the weight of the evidence introduced by the defendants tending to show the fraud and want of consideration alleged in the answer, and also of the plaintiff’s testimony tending to show that he had acquired the note in good faith, for value, and before maturity.
As this case will have to be remanded for new trial on account of the error stated, we deem it proper to say that, if the note in suit was taken by the plaintiff in payment of an antecedent debt owed by Bassett to him, and not as a mere collateral security for such debt, the transfer of the note to plaintiff was upon a sufficient
Judgment reversed and cause remanded.
Dissenting Opinion
Dissenting. — I do not concur in reversing this judgment, for the reason that on the whole record the judgment was unquestionably for the right party. I make no question as to the rule of shifting the burden of proof, as declared in the majority opinion. The possession by plaintiff of the note in question, it being a negotiable promissory note, under the endorsement of Bassett as payee, was prima-faeie evidence that plaintiff acquired it in the due course of trade before maturity, and that he was an innocent holder for value. This imposed upon defendant the burden of showing such facts as would rebut this presumption. Even if it be conceded that Bassett fraudulently procured the contract of lease, which was the consideration of the note, the record shows that the defendants did not stop there, but undertook to show affirmatively that plaintiff was nob an innocent holder, freed from any equities between defendants and Bassett, by putting in proof a conversation had between plaintiff and one of the defendants in the city of St. Joseph. The sum and whole substance of this admission of plaintiff was, that he may have taken the note in settlement of an antecedent debt from Bassett to him. Conceding this to be true, and this is all defendants can claim, this fact did not disprove that plaintiff was an innocent holder.
Whatever may be the better rule touching the vexed question of taking a note merely as collateral security for a preexisting debt, without more, the rule of law is now quite universally conceded to be, that a negotiable note taken prior to maturity in payment of an antece
As the evidence on tbe part of plaintiff was without contradiction, and, in fact, was hardly contested by defendants, at tbe trial, as evidenced by tbe fact that tbe defendants only sought, by tbe evidence introduced by them, to show that plaintiff bad merely taken tbe note in payment of an antecedent debt, there was really no issue of fact for tbe jury to pass upon. Tbe only fact, as admitted by the - majority opinion, which tbe plaintiff was called upon to prove in rebuttal of tbe defendants’ evidence, that tbe note was fraudulently obtained, was, that be bad taken tbe note before maturity for value. As already stated, this fact was virtually conceded by tbe defendants by their course at tbe trial. Besides, tbe evidence was so one-sided as to this fact, that it would have been tbe plain duty of tbe trial court to have set aside, on motion, a verdict of tbe jury finding otherwise. In such instance it cannot be error for tbe trial court to direct a verdict for the plaintiff. Tbe defendants were only relying upon tbe fact of tbe claimed admission of plaintiff as to bow be held tbe note. The law is, that such admission still made him an innocent bolder. Then why, when a judgment is so manifestly for tbe right party, and on tbe very theory on which defendants tried their case, should this court, on an empty technicality, reverse tbe judgment ? This is, in my opinion, sacrificing substance for mere form-a naked abstraction.
