First National Bank of Lincoln, Nebraska v. Bennett
| Decision Date | 04 December 1905 |
| Parties | FIRST NATIONAL BANK of Lincoln, Nebraska, Appellant, v. J. C. BENNETT et al., Respondents |
| Court | Kansas Court of Appeals |
November 6, 1905.
Appeal from DeKalb Circuit Court.--Hon. Alonzo D. Burnes, Judge.
AFFIRMED.
Cause affirmed.
W. H Haynes for appellant.
(1) The action of the court in giving the peremptory instruction on the part of the plaintiff was proper; and the court committed error in sustaining defendants' motion for a new trial. Bank v. Bank, 109 Mo.App. 665; Poindexter v McDowell, 110 Mo.App. 233. (2) Plaintiff having proven the indorsement and ownership of the note, and no contradictory testimony being offered, then under the pleadings the peremptory instruction given at the request of the plaintiff is proper. Bank v. Haineline, 67 Mo.App. 483; Emmert v. Meyer, 65 Mo.App. 609; Bank v. Bank, 109 Mo.App. 665; Poindexter v McDowell, supra. The answer does not in any respect aver or even intimate that there were any circumstances connected with the purchase and transfer of the note sufficient to put an ordinary prudent man on inquiry, nor was there any evidence offered to that effect. The defendants offered evidence only tending to prove fraud on the part of payee in note. (3) The rule that a purchaser is not an innocent holder if there are circumstances connected with the transfer sufficient to put an ordinary prudent man on inquiry, is uncertain and devoid of uniformity and no longer the prevailing law of this State. Hamilton v. Marks, 63 Mo. 167; Inv. Co. v. Fillingham, 85 Mo.App. 534; Bank v. Bank, 109 Mo.App. 665. This rule does not apply to negotiable paper. Jennings v. Todd, 118 Mo. 296.
Hewitt & Hewitt for respondent.
(1) There is one rule of universal and controlling efficacy. It is that, where substantive justice has been done, no new trial will be granted. The discretion of the courts consist in deciding this fundamental question. A judge, then, should never deny a question of this kind (new trial) unless he is satisfied that the merits of the case have been fully and fairly tested and determined. If he has a reasonable doubt on the subject he should decide in favor of the application. The general rule is that the court must be satisfied with the verdict, otherwise it is its duty to set it aside. Rickroad v. Martin, 43 Mo.App. l. c. 603. The same principle was announced in Helm v. Bassett, 9 Mo. l c. 54. (2) The determination of a motion for a new trial is in the discretion of the trial court whose action will not be interfered with unless said action was arbitrary or clearly wrong. The general rule is that the trial court must be satisfied with the verdict. This is generally necessary in the administration of justice. Rickroad v. Martin, 43 Mo.App. l. c. 603; Taylor v. Agricultural Co. 47 Mo.App. 257; Mfg. Co. v. Cunningham, 73 Mo.App. l. c. 382. (3) If the trial court's action in awarding a new trial can be sustained on any ground assigned in the motion therefor, then such action should be affirmed. Johnson v. Boonville, 85 Mo.App. 199. (4) Where the plaintiff introduces evidence on disputed issues, defendant is entitled to have the jury pass upon its credibility even though it stands uncontradicted. Seehorn v. Bank, 148 Mo. 256; Gannson v. Gas Co. 145 Mo. 502; Hugimen v. H. & Weissgerber, 97 Mo.App. 355, cases cited under par. 4 p. 352; Whitson v. Bank, 105 Mo.App. 605; Hahn v. Bradley, 92 Mo.App. 399. (5) By the answer the indorsement of the note was denied. It was also denied that the plaintiff was the bona fide owner and holder thereof. Also denied that plaintiff had paid or parted with anything of value for said note. These were issues of fact to be submitted to the jury, even though there had been no conflict of testimony developed. The trial court was in a better position then than this court is now to pass upon the matters raised by the motion for a new trial, having heard all the testimony in the cause. Questions of fact are for the jury, as questions of law are for the court, and the court cannot usurp the functions of the jury. Seehorn v. Bank, 148 Mo. l. c. 265; Gannon v. Gas Co., 145 Mo. l. c. 515, 516; Hugimen v. Weissgerber, 97 Mo.App. l. c. 353; Edwards v. Railway, 82 Mo.App. l. c. 486. (6) The evidence shows that the alleged purchase price of the note in suit was a credit check, and the amount deposited to the credit of the payee at the time, and the relationship of the bank to its depositors being that of debtor and creditor, then under the circumstances in this case plaintiff is not a bona fide holder for value of the note in suit. Utley v. Hill, 155 Mo. 232; Quatricha v. Farmers & Mechanics Bank, 89 Mo.App. l. c. 508; 4 Am. & Eng. Ency. (2 Ed.), p. 298; Bank v. Newell, 71 Wis. 309; Bank v. Huver, 114 Pa. St. 216; Dresser v. Construction Co., 93 U.S. 92.
The plaintiff is a national banking corporation located in Lincoln, Nebraska. The defendants are residents of DeKalb county, Missouri. The plaintiff's suit is founded on a negotiable promissory note executed by the defendants and payable to Watson, Woods Bros. & Kelly Co., a corporation engaged in the importation and sale of stallions. The petition alleges the purchase and assignment of the note before maturity for a valuable consideration. Petition also alleges that the mortgage was given to secure the payment of said note, upon a certain stallion, and judgment is asked for the amount of the note and interest, and for a foreclosure of the mortgage.
Defendant Dice files a separate answer admitting the execution of the note and alleging that he executed it as surety for his co-defendant Bennett. Defendant Bennett, in his answer, admits the execution of the note, but denies that plaintiff is the bona fide owner and holder thereof. For further answer he alleges that the consideration for the note represents the purchase price of a stallion, which was purchased from Watson, Woods Bros. & Kelly Co. by defendant; that said company are importers and dealers in fine stallions for sale to the public; that said company was aware of the fact that defendant wanted to purchase a stallion for breeding purposes; that it falsely represented that the said stallion was sound and warranted him to be, and that he would prove to be, a reasonably fair or average foal getter; that defendant relying upon said representation was induced to purchase said stallion, and sign said note and mortgage representing his purchase price; that said stallion was not sound at the time nor since, but was in fact unsound; that he was then and is now a cribber, otherwise known as a stumpsucker; that defendant soon after he received said horse discovered that he was not sound but a cribber; that defendant notified said company of his unsound condition, whereupon said company notified defendant that, if the horse was not sound, it would make him sound, thereby inducing defendant to retain him; and that said horse proved wholly worthless as a foal getter.
The evidence of plaintiff was that it bought the note for its face value including interest to the date of purchase, before...
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