65 N.W. 697 | N.D. | 1895
The facts necessary to the decision of this case may be stated as follows: The action is upon two promissory notes, each dated July 28, 1892, and falling due in one year from its date/ The notes were payable to the order of the Universal Gas & Construction Company, and were delivered to the payee by delivering the same to ,one E. S. Austin. The payee named in the notes was a corporation organized under the laws of the
In connection with the order granting a new trial the learned judge who made the order, following an excellent rule which prevails in some other states (but is seldom observed in this state,) made and filed the following memorandum of reasons: “In the above entitled action a new trial will be granted. I have no doubt that the plaintiff received the paper in the utmost good faith, before maturity, and for value. The notes, however, in my opinion were not taken in the regular course of business, they having been pledged by an officer of the payee for his -private debt. Wilson v. Railway Co., 120 N. Y. 145, 24 N. E. 384; Meads v. Bank, 25 N. Y. 143; Claflin v. Bank, 25 N. Y. 293; Shaw v. Spencer, 100 Mass. 382; Roberts v. Hall, 37 Conn. 205.” The order granting a new trial is assigned as error in this court, and the question presented by such assignment is the only point we are called upon to determine. A review of the testimony offered by the plaintiff brings out the following facts: First. The notes in suit were, when executed and delivered to the payee, the property of the corporation to which they were made payable on their face, and have ever since been, and now are, the property
We think the order granting a new trial was clearly proper, and must be affirmed.