72 Ind. 83 | Ind. | 1880
— This was a suit by the appellants, against the appellee, upon a promissory note, of which the following is a copy:
*84 “$112.00. Vigo, Ind., June 9th, 1876.
“One year after date, I promise to pay to Walker and Cornell, or order, one hundred and twelve dollars, negotiable and payable at the Vincennes National Bank, in Vincennes, bid., for value received,without any relief whatever from valuation or appraisement laws, with interest at the rate of ten per cent, per annum until paid. The drawers and endorsers severally waive presentment for payment, protest and notice of protest and non-payment of this note.
[Signed] “John Simonson.”
In their complaint, the appellants alleged that the note was endorsed to them by the payees thereof, and that the note and interest remained due and wholly unpaid.
The appellee answered in three special or affirmative paragraphs, to each of which the appellants’ demurrer, for the want of sufficient facts, was overruled by the court, and to these rulings they excepted. They then replied to appellee’s answer by a general denial thereof. The issues joined were tried by a jury, and a verdict was returned for the appellee, and the appellants’ motion for a new trial having been overruled, and their exception saved to this ruling, the court rendered judgment on the verdict.
In this court the appellants have properly assigned as errors the decisions of the circuit court in overruling their demurrers to each of the paragraphs of appellee’s answer, and their motion for a new trial.
In his argument of this cause, in this court, the appellants’ counsel has complained chiefly of the decision of the court in overruling the demurrer to the second paragraph of appellee’s answer; and, as this paragraph contains a fuller statement than either of the other paragraphs of answer, of the facts upon which the appellee relied as a defence to this action, we will give a summary of its allegations of fact in this connection. The. appellee , alleged, in substance, in the second paragraph of his answer, that the payees of the note
Of this second paragraph of answer, the appellants’ counsel says: “It is clear, from the repeated decisions of this court, that .the second paragraph is bad, unless the closing part of it, which alleges that the plaintiffs had knowledge of the matters precedently stated in said paragraph, at the time of the assignment of the note, makes it good.”- Doubtless,
In the case at bar, however, it was alleged in the paragraph of answer now under consideration, after having stated matters which would have constituted a complete defence to any action on the note by the payees thereof, that the appellants had full knowledge of all such matters, at the time they procured the note to be assigned to them, and at the time it was so assigned to them. Under these allegations of facts, which must be taken as true against the appellants, as the question is now presented, we are of the opinion that they took and hold the note sued upon, subject to all equities and defences existing between the maker and the payee thereof, and that the facts alleged in the second paragraph • of answer, therefore, were amply sufficient to withstand the demurrer thereto.
The important and controlling questions in this cause, as it seems to us, are properly presented for our decision b_y and under the alleged error of the court, in overruling the appellants’ motion for a new trial.
On the trial of the cause, the record shows that the appellants objected at the’ proper time to the introduction by the appellee of any evidence which tended to prove the facts alleged in the second paragraph of answer, impeaching the consideration of the note in suit, upon the ground that it had been fraudulently obtained from the
It seems to us that the appellants’ objections can only be: regarded as objections to the order in which the appellee' proposed to introduce his evidence. As a general rule, a party may introduce his evidence in the order he may prefer, subject only to the discretion of the trial court. Where the court, in-its discretion, has allowed a party to introduce' his evidence in the order in which he has offered it, or where the court has required the evidence in regard to some other alleged fact to be first introduced, the ruling of the-court in either case would not, we think, be an available-error in favor of the party complaining thereof, for the: reversal of the judgment below. Ginn v. Collins, 43 Ind. 271; Heilman v. Shanklin, 60 Ind. 424; and Burns v. Harris, 66 Ind. 536.
The record before us shows, that on the trial the appelleeintroduced the evidence of several witnesses in regard to-the consideration of the note in suit, and the alleged fraudulent manner in which the note had been obtained from him by the payees thereof; and that he then rested, without having introduced any evidence tending to prove that the appellants had full knowledge of the consideration of the note,
The court then, of its own motion, gave the jury the following instructions:
“ 1st. The plaintiff sues on a note alleged to have been executed by defendant to Walker & Cornell, payable at the Vincennes National Bank,. Vincennes, Indiana, and endorsed to plaintiffs. The defendant, by his answer, admits the execution and endorsement of the note. This admission makes out the plaintiffs’ side of the case and entitles them to a verdict for the full amount of note and interest, unless the defendant has satisfied you by a preponderance of the evidence, that the material allegations of the amended second paragraph of his answer, so far as the burden of proof i’ests upon him, are true.
“2d. The defendant, in said paragraph of answer, alleges, in substance, that Walker & Cornell made an agreement with defendant, by which they undertook to graft defendant’s apple-trees with grafts that would grow and bear a good quality of fruit, and do the work in a skilful manner ; that the grafting was done in an unskilful manner, to .the injury of the trees, and with worthless grafts ; that the note was given in consideration of said undertaking, and plaintiffs had knowledge of these facts when they took the assignment of the note.
“ 3d. It is not incumbent on the defendant to prove that the plaintiffs had knowledge, when the note was endorsed to them, of the other matters alleged in the said paragraph.
(Signed,) “N. F. Malott, Judge.”
These instructions were duly excepted to by the appellants, at the time they were given. They were applicable to the case made by the evidence, and we think they contain a true and correct statement of the law governing this case. In Vathir v. Zane, 6 Grat. 246, the court said: “As a general rule, the endorsement of a negotiable note is of itself prima facie evidence that the endorsee has paid value for it. But * * where the payee has procured the note by' fraud, this general presumption is rebutted, and the holder can not recover without proving that he has paid value.” In Rogers v. Morton, 12 Wend. 484, a note had been given for a supposed balance on a settlement of accounts, which balance was shown to have been made up, in part, by a charge for a draft, of which the creditor had never been the holder. Nelson, J., said : “I am of opinion that the facts disclosed by the bill of exceptions were sufficient to throw the burden upon the plaintiffs, of showing that Gwathmey was a bona fide holder for value. A promissory note imports a valuable consideration upon its face, and possession is presumptive evidence of property rightfully acquired; but when the maker shows that it was obtained from him and put into circulation by force or fraud, all the above intendments of law are rebutted, and proof becomes necessary.” In Bailey v. Bidwell, 18 M. & W. 73, Parke, B., said: “It certainly has been, since the later cases, the universal understanding, that if the note were proved to have been obtained by fraud, or
This doctrine was recognized, approved and acted upon by this court, in Harbison v. The Bank of the State of Indiana, 28 Ind. 133. In that case, the Bank of the State, as the indorsee, had sued Harbison, as the drawer, of a bill of exchange, and had obtained a judgment. On the trial of the cause, the appellant had asked the court to give the jury the following instruction : ‘ ‘If the jury believe, from the evidence in this case, that W. G. Laughery, the acceptor of the bill of exchange in the complaint in this case mentioned, obtained the signature of the defendant James P. Harbison thereto, as drawer thereof, fraudulently and without any consideration, then the plaintiff can not recover in this action without showing that it is the bona fide holder of said bill of exchange, and that the bank paid a valuable consideration therefor; and the mere production of the bill of exchange in court, and reading the same to the jury, and the possession thereof by the plaintiff, is not sufficient evidence that the bank paid a valuable consideration for the same; and without such evidence, the plaintiff ought not to recover in this suit, and the jury should find for the defendant.” This instruction had been refused below, and on appeal, in reference to the instruction, this court said: “The evidence introduced under the issues made, required that this instruction should have been given to the jury, if it correctly stated the law, and we do not think its correctness can be seriously questioned * * * The instruction should have been-given.”
So far as we are advised, the doctrine of the case cited has never been doubted or-questioned-by this court. The
The court did not err, we think, in overruling the motion.for a .new trial.
The judgment is affirmed, at the appellants’ costs.