Ward v. Johnson

57 Minn. 301 | Minn. | 1894

Gileiluan, G. J.

The action is on a joint and several promissory note indorsed to plaintiff. The defenses are: First, that the note was, after signing by defendant, fraudulently altered; that it was signed by defendant upon the understanding between him and the payees that it was not to take effect until certain other parties should sign it; that the payees were to procure such other parties to sign, and it was left with the payees for that purpose; and that the signatures of such other parties were never procured.

The trial court submitted only the first of these defenses to the jury, and the plaintiff had a verdict.

The court withdrew the second defense from the jury, on the ground that there was nothing indicating that the plaintiff, when he purchased, had notice of any facts which would constitute a defense between the original parties. There was evidence tending to prove the facts alleged in that defense. On the other hand, the plaintiff showed beyond question that he purchased before maturity, and for a‘ valuable consideration; and there remained the question, was there a case for the jury on the matter of notice to him, at the time of his purchase, of the facts showing the note had never been completed?

The note was-dated June 16th and transferred to plaintiff July 7th, 1890. The testimony of one of the payees tended to show (not very clearly, perhaps) that, within a very few days after the transfer, he took the note for the purpose of endeavoring to get, and did endeavor to get, the signatures of the other parties who were to sign, and had not signed it. Now, if the jury had found, as they might have done from that testimony, that such payee got the note from plaintiff, they would have been justified in the inference that the plaintiff knew it was for the purpose of having it completed by the signatures of those who were to but had not signed it; and, from the transaction occurring so very soon after the transfer to him, they might, in the absence of any explanation, conclude he knew of the incompleteness of the note when transferred to him.

There was a case for the jury on the question, and it was error to withdraw what we have designated the second defense from the jury.

Order reversed.

Buck, J., absent, sick, took no part.

(Opinion published 59 N. W. 189.)