65 P. 501 | Idaho | 1901
This action is based upon a promissory note, to wit:
“$136.75. Boise, Idaho, April 28th, 1899.
“Six months after date, for value received, I, we, or either of us, promise to pay to the order of Harry Timmons, agent, $136.75, at the Capital State Bank of Idaho, Limited, Boise, Idaho, without defalcation or discount, with interest at the rate of six per cent per annum from maturity until paid, both before and after judgment. It is also stipulated that, should this note be collected by an attorney, whether by suit or otherwise, -per cent shall be allowed the holder as attorney’s fees.
(Signed) “JHDSON SPOFEORD.”
By the complaint it is shown that this note was sold, indorsed, and delivered to plaintiff by Harry Timmons before maturity for a consideration, and that he is still the owner and holder thereof. The answer denies that on the twenty-eighth day of April, 1899, or at any other time, defendant made, executed, or delivered to Harry Timmons this note or any other note. Admits that the defendant executed the note, buit alleges that there was no consideration of any nature or kind for the execution of said note, all of which was well known to said plaintiff prior to the time such note came into the possession or under the control of said plaintiff. Alleges that Harry Timmons was agent of the Equitable Life Insurance Company of New York at the time of the execution of said note; that said note was executed and delivered to the said Harry Timmons as the agent of the said Equitable Life Insurance Company, and was given with the distinct understanding that the same was to be for the premium of the life insurance policy to be executed and delivered by said Equitable Life Insurance Company for $5,000, and that the same was to be delivered to this defendant within ten days from April 28, 1899, or upon failure so to do, the said note was to be returned to this defendant; that the said life insurance policy was never delivered to defendant — all of which was well known to plaintiff prior to the time of his alleged ownership of said note, and all of which more fully appears by a written contract made by the said Harry Timmons, agent of the said Equitable Life Insurance Company, which contract is as follows:
*740 “Boise City, Idaho, April 28th, 1899.
“.Received of Judson Spofford two notes of even date herewith, aggregating $226.75, in full for first annual payment $5,000 insurance in the Equitable Life of N. Y.; said notes to be returned if policy is not delivered to him in ten days from this date; policy to take effect from this date.
“HARRY TIMMONS,
“Special Agent.”
Upon the issues thus formed this cause was tried, a jury having been waived. Plaintiff offered in evidence the note above referred to, to which defendant objected. The note was read in evidence, and marked Plaintiff’s Exhibit “A.” Plaintiff rested. The defendant moved for a nonsuit, which motion was overruled. The defendant refused to offer any evidence. The court rendered judgment for the face of the note, with interest and costs. Defendant alleges the following errors: “1. The evidence introduced in said cause is insufficient to justify the decision of the court, as follows: The note introduced in evidence shows that the same was made payable to Harry Timmons, agent, and not to Harry Timmons as an individual, and shows that Harry Timmons as an individual indorsed said note to the plaintiff, and that such note was not indorsed in the name of the true owner, and that there is no evidence to show any consideration given by the plaintiff for the assignment of such note, and there is no evidence to show that the plaintiff is the owner or holder of such note, and the note shows upon its face that Harry Timmons was not the owner of such note. 2. The note shows on its face that Harry Timmons was not the payee of such note. That such note also shows that the same was never indorsed by the payee of said note. That such note shows that the plaintiff is not the legal owner or holder of such note. 3. The court erred in overruling the objection of the defendant to the introduction of said note in evidence. The court erred in holding that Harry Timmons was the payee of said note. The court erred in holding that said note was indorsed to the plaintiff. The court erred in holding that plaintiff is the legal owner and
It will be observed, from the above statement of the pleading, facts, and errors relied upon by appellant, that the question presented to this court is, "Was there error in the order of the court below overruling defendant’s motion for a nonsuit? The record shows that the only evidence introduced on behalf of respondent was the note in question; that the defendant then moved for a nonsuit, which being overruled, he neglected and refused to offer any testimony to sustain his answer, and relies upon this motion for a reversal in this court. Appellant calls our attention to a number of authorities to establish that Tim-mons was not the real owner of the note at the time he sold it to plaintiff, by reason of said note being made payable to Harry Timmons, agent. If such were the fact, it would have been a good and valid defense to this action; and, under his answer, we apprehend the trial court would have permitted him to prove such fact. The court recites in the judgment, to wit: “The plaintiff having introduced certain documentary evidence, and .the defendant refusing to offer any evidence, and the evidence being closed, the cause was submitted to the court for consideration and decision,” etc. We think, when the plaintiff introduced the note in evidence, he made a prima facie case, and if there was merit in the answer of the defendant, and after the court denied his motion for a nonsuit, he should have submitted his proof; but it seems he did not do so, or even offer to do so, or offer any excuse or reason for not doing so. That the plaintiff had the right to sue and recover in this action on the note described and set out in haec verba in the complaint, we think, is settled by the authorities. In Bank of New York v. State Bank of Ohio, 29 N. Y. 619, cited by appellant, it appears the note was payable to D. C. Converse, cashier, and indorsed, “D. C. Converse, Or.” Suit was brought against the bank of which he was cashier on this indorsement. The court says: “Had there been nothing in the case to connect the bill with the defendant’s bank, Converse would have been regarded as the payee and the indorser, individually, and the abbreviation affixed to his name considered as a descriptio
