60 Mo. 305 | Mo. | 1875
Lead Opinion
delivered the opinion of the court.
This was an action instituted by Shirts, before a justice of the peace against the defendant, Overjohn, as maker of a promissory note for $200, dated October 19, 1872, and payable twelve months after date, to the order of T. England. There was a judgment for the plaintiff before the justice, and defendant appealed to the Linn County Common Pleas Court. At the trial in the Common Pleas Court, the note was read in evidence without objection, together with an endorsement and guarantee in blank by T. England, and also the following-endorsement: “Credit fifty dollars on October 28th, 1872. H. Overjohn.”
The defendant, Overjohn, testified as follows: “At the time I made the note sued on, the payee in said note came to me, and wanted me to act as agent for the sale of his plows. England, .the payee, was to let me have three plows, but only left one, which was left as a sample to show to farmers, not to sell. At the tíme I signed the note sued on, I supposed I was giving a receipt for the plows, I never received the plows he promised to send nor anything else. There was no consideration of any kind for the note, which I thought and understood to be a receipt only.”
England then wrote the credit of fifty dollars on the back of the note and defendant signed it. The editor of the Gazette testified that after a single insertion, the defendant withdrew the advertisement, and according to his best impression, said to him at the time, it was all right.
Plaintiff then offered his own and other testimony to show that he was a bona fide holder for value and before maturity of the note sued on, which testimony was objected to bv the defendant, aijd excluded by the court, and plaintiff excepted.
The plaintiff asked the following instructions :
1. The jury are instructed that it stands admitted that the plaintiff in this suit purchased said note before it came due, for a valuable consideration, and without notice of any fraud between defendant and said England.
2. The jury are instructed that fraud cannot be presumed, but that it must be proven, and although the jury may believe from the evidence, that defendant did not know at the time he signed said note, that it was a note, yet if they believe from the evidence that the defendant placed his name on the back of the note, after he was aware that it was a note, and recognized it as a note, then they will find for the plaintiff.
3. It stands admitted that defendant signed his name on the back of the note in controversy, after he found out that it was a note.
The court refused to give the first instruction as asked, but gave all of it except that portion in italics, and gave the second instruction, and refused the third ; to which action of the court, in refusing to give the third and the latter portion of the first infraction, plaintiff at the time excepted.
There was a verdict anda judgment for the defendant,and plaintiff brings the case here by writ of error.
There were no pleadings in this case, and as there was no testimony of the defendant as to the purchase by plaintiff of the note sued on before maturity for value, and without any notice of any fraud on the part of England, the court committed no error in refusing the first instruction as asked by the plaintiff. The yorima facie presumption of law, that every holder of any negotiable paper is the owner of it; that he took it for value, before dishonor and in the regular course of business, -would not have warranted the court in instructing the jury that such presumptions were admitted facts.
The third instruction asked by plaintiff should have been given. It clearly appears from the testimony of the defendant, that after lie ascertained that he had signed a note to England, instead of a receipt, and England proposed to allow a credit of fifty dollars upon it, such credit was endorsed upon the note, and was accepted and signed by defendant. This testimony of the defendant constituted an admission as fully as if it had been embodied in an answer. The instruction given by the court on behalf of the defendant is seriously objectionable. It directed the jury to find for the defendant, notwithstanding the fact that he freely acquiesced in and ratified the execution of’the note, with full knowledge of his mistake, and before England had negotiated it; besides, it is directly in conflict with the second instruction given for the plaintiff. But another, and, as we think, a very grave error, was committed in directing the jury in this instruction, to find for the defendant, if they believed from the evidence that he
It would be exceedingly difficult to lav down with accuracy a general rule which would be applicable to all cases of this character which might arise; but the result of the best considered cases on this subject may be generally stated to be, that where it appears that the party sought to be charged, intended to bind himself by some obligation in writing, and voluntarily signed his name to what he supposed to be the obligation he intended to execute, having full and unrestricted means of ascertaining for himself the true character of such instrument before signing the same, but by his failure to inform himself of its contents, or by relying upon the representations of another, 'as to the contents of the instrument presented for his signature, signed and delivered a negotiable note in lien of the instrument intended to be signed, he cannot be heard to impeach its validity in the hands of a bona fide holder.
In the case of Foster vs. Mackinnon, Law Reports, 4 C. P. 704, decided in 1869, Byles, J., delivering the opinion of the court, affirmed the charge of the chief justice at the assizes, in which he had directed the jury, that if the endorsement of the defendant of the bill of exchange sued on was obtained upon a fraudulent representation that it was a guarantee, and the defendant signed it without knowing that it was a bill, and under the belief that it was a guarantee, and if the defendant was not guilty of any negligence in so signing the paper, he was not liable as endorser to a bona fide holder.
In the ease of Chapman vs. Rose, (56 N. Y. 137,) decided by the Court of Appeals in 1874, it appears that the defendant entered into a contract, with one Miller, to act as agent for the sale of a patent hay-fork and pulley. A contract was filled out by Miller, and signed by both ; also an order which was signed by the defendant for one of the hay-forks and two •pulleys, for which, by the order, defendant agreed to pay nine dollars. These were delivered to the defendant. Another paper was then presented to the defendant for his signature, which Miller represented to be but a duplicate of the order. Defendant, without reading or examining it, signed and delivered it to Miller. The paper so signed was a promissory note for $270, and was the note in suit. The plaintiff purchased in good faith before maturity. The judge charged the jury that if the paper sued upon was never delivered as a note, the plaintiff must fail in the action; and that, even if it was delivered, and the plaintiff neglected to make proper enquiry as to its origin, he was not a bona fide holder, and could not recover. Johnson, J., in delivering the opinion of the whole court, says : “ There does not appear to have been any physi
We consider the rejection of the testimony offered by the plaintiff, an immaterial matter, as we do not think the defense made devolved upon the plaintiff the duty of showing by positive testimony that he was a bona fide holder for value before maturity. '
The judgment will be reversed and the cause remanded;
Dissenting Opinion
delivered the following separate opinion.
The doctrine enunciated in Briggs vs. Ewart, (51 Mo., 245,) and, also, in that of Washington Savings Bank vs. Ecky, (Id., 272,) never met with my approval, as will*be remembered by my associates who were on the bench at the time, although I did not take the precaution to have my formal dissent entered.
And I am truly gratified to see a well settled rule of commercial law, again in the ascendant. (Horton vs. Bayne, 52 Mo., 531.)