123 Ky. 696 | Ky. Ct. App. | 1906
Opinion by
Affirmed.
On August 15, 1904, there were judgments in the Graves circuit court’ against J. A. Tilley for fines amounting with costs to $430. Tilley had $300 in cash, but wished to replevy the judgments. W. T. and J. R. Wilkins. wished to borrow $300 for a short time, and it was arranged between them and Tilley that they would sign the replevin bonds as Tilley’s sureties, and hold the $300 until the bonds were due; that then they were to pay the $300 on the bonds, and Tilley would pay the remainder. Tilley paid over the $300 to them
The proof for the defendants showed that they had paid off the judgments which they had replevied as Tilley’s sureties, and that Tilley was insolvent, so that they are already out $430, and will have no security if they have the note to pay. The proof for them also showed that Brand got them to sign the note by telling them that Tilley was sick, and he only wanted the note to show for the money in case of death, when the fact was that Tilley was not sick at all, and Brand concealed from them the purpose for which the note was obtained, but Usher knew nothing of this, and took the note in good faith when it was brought to him. The note referred to is in
The act regulating negotiable instruments, approved March 24, 1904 (Acts 1904 p. 213 c. 102), contains, among others, these provisions:
“See. 25. Value is any consideration sufficient to support a simple contract. An antecedent or preexisting debt constitutes a value, and is deemed such, whether the instrument is payable on demand or at a future time.
*701 ‘ ‘ Sec. 26. Where value has at any time been given for the instrument, the- holder is deemed a holder for value in respect to all parties who became such prior to that time.
“Sec. 27. Where the holder has a lien on the instrument, arising either from contract or by implication of law, he is deemed a holder for value to the extent of his lien.”
“Sec. 52. A holder in due course is a holder who has taken the instrument under the following conditions: (1) That the instrument is complete and regular upon its face. (2) That he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact. (3) That he took it in good faith and for value. (4) That at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it. ’ ’
“See. 56. To constitute notice of an infirmity in the instrument or defect in the title of the person negotiating the same, the person to whom it is negotiated must have had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.
‘ ‘ Sec. 57. A holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available to prior parties among themselves, and may enforce payment of the instrument for the full amount thereof against all parties liable thereon.”
“Sec. 59. Every holder is deemed prima facie to be a holder in due course.”
. The evidence does not warrant the conclusion that the Wilkins brothers did not' know the real nature of the writing when they signed it. They were deceived as to the purpose for which the writing was
Tbe defendants asked tbe court to instruct tbe jury that, if Brand noted for Usber in procuring tbe note from Wilkins brothers, and bad notice of'the agreement between them and Tilley, they should find for them. Tbe court properly refused to give this instruction, for there was nothing in tbe evidence to show that Brand bad any authority from Usher to act for him in any way with tbe Wilkins brothers. So far as tbe proof shows, Usber bad ho notice of Brand’s visit to them at all, and was in no' way connected with it. Brand evidently acted in this matter on bis own behalf to secure bis own debt of $117.
Judgment affirmed,