209 N.W. 523 | Iowa | 1926
I. At the close of the evidence, plaintiff moved for a directed verdict, upon the ground, among others, that the evidence without dispute showed that plaintiff was a holder in 1. BILLS AND due course. The record does not show any NOTES: exception to the overruling of this motion. In holdership view of a new trial, we may add that we are of in due the opinion that the motion was properly course: jury overruled. Cedar Point St. Bank v. Youtz, 200 question. Iowa 86; Second Nat. Bank v. Scanlon,
II. The court charged the jury, in substance, that plaintiff, if entitled to recover, could recover only the value of the credit which it gave to Coulthard; that it was for the plaintiff to show the value of the Coulthard notes, or so 2. BILLS AND much thereof as Coulthard was given credit for NOTES: by the note in suit; and that, if the Coulthard holdership notes were of no value, plaintiff had given in due nothing for defendant's note, and was not course: entitled to recover; that, if the jury found value in that defendant's note was obtained by fraud, but form of that plaintiff was entitled to recover, then the "credits:" jury must determine the value given by plaintiff improper for defendant's note, and return a verdict for submission. that amount, with interest. These instructions were properly excepted to. The jury answered, "No," to the following special interrogatory:
"Do you find from the evidence herein that the plaintiff, State Savings Bank, was an innocent purchaser of the note sued on?"
The jury answered, "Nothing," to the following special interrogatory:
"How much, if any, do you find from the evidence herein was the value of the credit that the plaintiff * * * gave D.L. Coulthard on his notes referred to?"
In the instructions, the terms "innocent purchaser" and "holder in due course" appear to have been used interchangeably. We therefore cannot hold that the answer to the first special interrogatory referred to shows that the error in the instructions referred to was without prejudice in connection with the instructions. We think that these instructions were erroneous. The evidence showed that Coulthard, at the time that he sold defendant's note to plaintiff, was entirely solvent. There was no evidence to the contrary, or evidence that Coulthard had become insolvent. His notes were prima facie worth the amount payable by their terms. Callanan v. Brown Co.,
Plaintiff contends that defendant is estopped from asserting fraud. Defendant testifies that Coulthard was to hold "the notes in trust until such time as I could talk the proposition over, and fully decide that we wanted them turned over 3. BILLS AND to the company. Three or four days after that * NOTES: * * I told Mr. Coulthard to go ahead and turn holdership the notes over. * * * At that time, Mr. in due Coulthard told me again that he had been to course: Council Bluffs and looked over the company's fraud: books, and that they were in first-class estoppel. condition, and that he had been elected a director * * * and that he and his father had invested $90,000 in the stock, and that the company would be all they expected of it."
Defendant did not make any investigation. There is no evidence that he then had any knowledge of the fraud; none that he knew that the note was to be negotiated to the plaintiff, or that the plaintiff knew or acted upon any representation by the defendant. The elements of an estoppel are lacking. Hill v. Dillon, 151 Mo. App. 86 (131 S.W. 728); Adams v. Ashman, 203 Pa. St. 536 (53 A. 375); 21 Corpus Juris 1205.
The judgment is — Reversed.
De GRAFF, C.J., and EVANS and ALBERT, JJ., concur.
