187 N.W. 960 | N.D. | 1922
This is an appeal from a judgment in plaintiff’s favor in the sum of $2,325.70. The action is .one to recover upon a certain
The case was tried to the court and jury. At the close of all the testimony plaintiff asked the court to direct, a. verdict in its favor. -This motion was denied. The jury failed to agree; the plaintiff renewed the motion for a directed verdict. It was agreed in open court by counsel for the respective parties that the motion for a directed- verdict might be argued at a later date, and the jury discharged for the present and that no objection would be made to the fact that the jury was discharged. On the nth day of October 1921, argument of the motion was had and the court concluded that the motion for a directed verdict made at the close of all of the testimony by the plaintiff, should be allowed, -this on the theory that the plaintiff had purchased the note in due course of business for a valuable consideration, and without knowledge of any facts that would show that such purchase was made in bad faith.
The directing of the verdict, the order for judgment and judgment against the defendant are assigned as error, as well as that there was evidence showing that plaintiff was not a purchaser in due course; that such evidence was of such a nature that the jury would have been justified in finding that the plaintiff was not a holder in due course, and further that the evidence was of such a nature that it clearly shows there was a breach of warranty and failure of consideration so that the jury would have been justified in finding for the defendant on all the issues. Error is also specified to the effect that the verdict is not justified by the evidence.
It is clear that a verdict should not have been directed if the evidence of the purchase of the note, is of such character that different minds could draw different conclusions as to whether it showed that the note was taken in due course, or with notice or knowledge of matters which might constitute a defense or show the bad faith of the purchaser. We think the evidence.is of that character and that it should have been submitted to the jury for consideration and determination.
Ziegenhagel was president of the plaintiff bank. He knew when he purchased the note that it was given for a tractor. The evidence shows that defendant made complaint concerning the tractor- to the Machine
Q. And Mr. Ziegenhagel was present, was he, at that time?
A. Yes.
Q. And how were you talking, as to talking in a low quiet voice, or loud and angry?
A. I was quite loud.
Q. You were quite thoroughly mad, were you?
A. I was."
Q. What did anybody say?
A. Oh, they was trying to reduce me a little down and' says if that matter can’t be fixed that they would take the engine back without any cost to me.
The evidence further discloses that defendant had much trouble with the engine; that experts were out many times to try to fix it.
The undisputed evidence shows the note bore no interest before maturity ; it was purchased but a few days prior to the time it matured, we think, that it was a matter of common knowledge that money was very scarce in North Dakota at that time, and whether the bank in the financial conditions then existing would invest money in non-interest bearing negotiable paper, was a circumstance which might be considered by the jury as bearing upon the question of the good faith of the purchaser. It is scarcely necessary to add that since Ziegenhagel was president of the bank, his knowledge was the knowledge of the bank. We are of the opinion that under the rule announced’ in Sweet v. Anderson 41 N. D. 380, 170 N. W. 869, the burden is on plaintiff to show its good faith. See also Connelly v. Greenfield Savings Bank, 185 N. W. 887. We are satisfied from an examination of the record that the questions of fact in this case should have been submitted to the jury, and that it was reversible error for the court not to so do.