106 Neb. 388 | Neb. | 1921
Defendant appeals from a judgment entered in the district- court for Scotts Bluff county.
Action was brought by- plaintiff as the holder of two promissory notes in the sum of $1,000 each, given by defendant to the Globe Life Insurance Company of Salina, Kansas. One note bears date of November 9, 1917, and the other November 17, 1917. ■ The issues as to each note are the same. After setting out a copy of each note the petition alleges: “That before maturity of the said note
The answer admitted the execution and delivery of the notes to the insurance company, but denied all other allegations in the petition. It specifically denied that the insurance company indorsed or assigned the notes to the plaintiff, but averred that one W. g. Hayslip, who was treasurer of the company, and Avho had made the indorsement, had no authority to indorse the name of the company on the note, and alleged that the indorsement was not the indorsement of the insurance company. It also alleged that the company received no consideration for the note. It alleges that by false and fraudulent representations defendant Avas induced to execute the notes for shares of capital stock in the insurance company, pleading at length a state of facts which Avould constitute a defense to the notes if they were in the hands of the original payee, and constituting a defense provided plaintiff did not become the OAvner and holder in due course. At the close of the evidence the court directed a verdict for plaintiff.
As grounds of error defendant alleges that the court erred in permitting the introduction of the notes in eAÚdence. The basis of the assignment is found in the contention that, although the notes were made payable to the Globe Life Insurance Company, they were in fact the property of one Felix Broeker, president of the company, and that the company was not authorized by its charter to indorse commercial paper for the benefit of other parties; that the treasurer of the corporation had no au- . thority to make the indorsement, and therefore the notes were inadmissible in evidence until plaintiff first proved that the treasurer was expressly authorized by the by
We must now consider the question: Did plaintiff become a holder in good faith in the usual course of business, for value, and without notice of fraud in the inception of the notes? Under the pleadings and the proof made by defendant, the burden was upon plaintiff to prove the affirmative of this question. The alleged purchase of the notes was made through its cashier, Mr. Mergen, Avho testified to a state of facts which might be sufficient to support the instruction of the court to the jury to return a verdict for plaintiff. But, where doubt is cast upon the truth of the story and there is a dispute on any of the material issues, the trial court is not free to direct a verdict, but must submit the disputed questions of fact to the consideration of the jury.
Prior to the bringing of this suit the insurance company had become a bankrupt, and a great mass of documents, purporting to include the minutes of stockholders’ and board of directors’ meetings, as well as reports made by official examiners, is included in the record. Prom these reports and documents it appears that only a short
It is argued that, the witness being a representative of the plaintiff and an interested party, it was error to restrict his cross-examination or to deny defendant the benefit of the offered testimony, as it would tend to show the good faith of plaintiff in taking the notes and affect his credibility. Did the court err in so restricting the cross-examination? The burden wás on plaintiff, after facts tending to show fraud were developed, to show that these notes were taken in good faith, and, if by the cross-examination of the witness it could be developed that he knew that the president of the company was violating his duties as an officer of the company and Using its
. The judgment is reversed and the cause remanded.
Reversed.