T. H. McMahan & Co. v. Bremond

16 Tex. 331 | Tex. | 1856

Wheeler, J.

It is true, that, when the contrary do eslío t appear, the presumption will be, that a note which has been negotiated, was transferred before its maturity. But the defendants proposed to rebut that presumption in this case, by proof to the contrary. The evidence upon the point was conflicting and unsatisfactory ; rendering the question one proper to be left to the decision of the jury. The witness Lutz stated that he received the note in a letter, or package, addressed to Mm by the plaintiff, from Houston, before its maturity ; from which the inference would be, that it must have been transferred to the plaintiff before that time. But the witness states other matters which throw doubt on the accuracy of his statement. The testimony also of Jones and Battle goes strongly to repel the supposition that there had been any actual transfer of the note to the plaintiff. The note matured ten days after date. Shortly after it was made, Stewart went to Columbia, and did not return until after its maturity. It was seen in his desk at Richmond, by his Clerk, Jones ; wMch must have been before it came into the hands of the witness Lutz ; and yet it was sent to the latter from Houston, before it matured, and was presented by him for payment at its maturity. On the return of Stewart, it was again presented by him for payment; and not being paid, was left in Ms hands to be delivered, or, as the witness, Lutz, says, was sent by him to the plaintiff at Houston. If the witness was acting in the matter solely as the agent of the plaintiff, and had cause to believe that the note really belonged to the plaintiff, it is not perceived why he should have conferred with Stewart about its presentation and payment; or, if it had been really transferred to the plaintiff, why Stewart should have manifested so much concern to obtain its prompt payment. It is not pretended that he apprehended that the defendants would be unable to pay, and the plaintiff would have recourse upon him. His own insolvency, it would seem, must have relieved him from any such apprehension. The conduct of the witness Lutz, does not very well accord with the supposition, that he really believed the note was, bona fide, the property of the plaintiff. His giving it to Stewart to be presented, and its presentation by him for payment, after its maturity, was well calculated, at least, to lead the defendants to suppose that the latter was still the owner of the note. In fine, the purpose for which Stewart said he wanted the money, is quite inconsistent with the supposition that there had been any actual transfer of the property in the note ; and there is reason to believe that the witness, Lutz, was mistaken in his statement. At all events, the Court should have left the question to the decision of the jury ; instead of assuming the fact as established, that the note was transferred before maturity, and thereupon excluding the defendant’s evidence of a set-off. But the evidence having been excluded, the jury could not do otherwise than return a verdict for the plaintiff, though they may have been satisfied that the note was not the property of the plaintiff before its maturity. To exclude the defendants’ evidence, was virtually to decide the issue of fact, as to the time of the transfer of the note, against the defendants. In effect it was to decide the whole issue against them, without giving them the benefit of a decision of the fact by the jury. This was error. The evidence should have been allowed to go to the jury, with instructions as to the effect of a bona fide assignment, or transfer of the note to the plaintiff before its maturity. The judgment is reversed and the cause remanded.

Reversed and remanded.