Johnson v. McMurry

• Citation: 72 Mo. 278
• Parties: JOHNSON v. MCMURRY et al., Appellants.
• Decision Date: 31 October 1880
• Court: United States State Supreme Court of Missouri

72 Mo. 278

JOHNSON

v.MCMURRY et al., Appellants.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Knox Circuit Court.--HON. JNO. C. ANDERSON, Judge.

REVERSED.

Wilson & Cover for appellants.

W. R. McQuoid for respondent.

HOUGH, J.

This was a suit on a negotiable promissory note executed by the defendants to one J. M. Spencer, and by him transferred to the plaintiff. The consideration for the note was the exclusive right to make and sell in Lewis county ““Spencer's Improved Portable Stock Feeder.” The defendants alleged in their answer, that the invention was worthless, and that they were induced to purchase the right to make and sell the same, and give their note therefor, by certain false and fraudulent representations of Spencer as to the value of said invention and of the exclusive right to sell the same, and as to the cost of making said feeder, according to the model furnished, and that plaintiff, when he purchased the note had knowledge thereof, and had conspired with said Spencer to cheat and defraud the defendants.

At the trial, counsel for plaintiff, after offering the note in evidence, and without waiting for any testimony on the part of the defendants tending to show that it had been obtained by fraud, introduced the testimony of plaintiff showing that he was a bona fide purchaser for value before maturity, of the note sued on; that he knew the note was given for the right to make and sell the patent feeder; that said feeder was “a good thing,” but rather expensive for an ordinary farmer. The defendants thereupon introduced testimony tending to show that in order to induce them to “purchase territory” for the sale of the feeder, said Spencer had falsely and fraudulently represented to the defendants that divers persons, naming them, wanted said feeder, and would each purchase one from the defendants, and if they did not, the sale should be rescinded; that many stock men had tried them and liked them; that they worked well and saved a great amount of labor. Testimony was further offered to show that the feeder was worthless for the purposes for which it was sold; that defendants purchased, relying upon the truth of the representations made, and the promise of Spencer that he would not negotiate the note given by them. No testimony whatever was given tending to show any knowledge on the part of the plaintiff of any of the alleged fraudulent representations of Spencer.

The court, of its own motion, gave the following instructions: 1. The note sued on is a negotiable promissory note, and if the jury shall believe from the evidence in the cause that said note was transferred to plaintiff before the maturity thereof, then before the jury can find for the defendants, they must believe from the evidence in the cause that plaintiff, before he purchased the same, had knowledge of the representations made by Spencer to defendants, or that the feeder was wholly worthless as a feeder, and that the plaintiff, before he purchased said note, had knowledge of such fact, and further, that the plaintiff had knowledge of the fact that the note sued on was given for such feeder, otherwise they must find for the plaintiff, and the burden of proof is upon the defendants to establish plaintiff's knowledge of such facts.

2. There is no evidence in the cause that plaintiff had any knowledge of the representations made by Spencer to defendants previous to the time he purchased the note sued on.

3. If the jury shall believe from the evidence in the cause that the note sued on was given for the right to manufacture a stock feeder, and the same was worthless for such purpose, and that plaintiff knew that said note was given for the right to manufacture such stock feeder before he purchased the same, and knew also that such feeder was worthless as a stock feeder before he purchased said note, then the jury will find for the defendants.

4. It is the duty of the jury, under their oath, to decide the cause according to the law as laid down in the in uctions of the court.

The defendants asked the following instructions, which were refused: 1. Although the jury may believe from the evidence that the note in controversy was assigned to plaintiff, and that said assignment was for a valuable consideration and before said note was...