Bank of Commerce v. Broyles
| Decision Date | 28 February 1910 |
| Citation | 120 P. 670,16 N.M. 414,1910 -NMSC- 017 |
| Parties | BANK OF COMMERCE v. BROYLES et al. |
| Court | New Mexico Supreme Court |
On Rehearing, December 21, 1911.
Syllabus by the Court.
A motion for a peremptory instruction by both parties does not constitute a final waiver by either of jury trial where the evidence is conflicting and where after adverse ruling upon his request for peremptory instruction such party thereupon insists upon a trial by jury.
It is error for the court to withdraw a case from the jury where the evidence as to liability is conflicting or the inferences on that subject to be drawn from the testimony are divergent upon a trial by jury.
It is the duty of the court to direct a verdict where it would be bound to set aside a contrary verdict for want of testimony to support it. be drawn from the testimony are divergent.
To render a fraudulent misrepresentation securing the signing of a promissory note available in defense against it it must be shown that the defendant was damaged by such misrepresentation.
Where the plaintiff by knowingly false statements secured the signing by the defendants of a certain note, but this latter was in satisfaction of a former note then due from the defendants for the same amount and on the same terms, which latter note thereby became and was canceled and retired, such misrepresentation constitutes no defense to a suit on such second note, since the misrepresentation led simply to the defendants paying a debt due by them and they were thus in legal contemplation not damaged thereby.
It is not error to refuse to submit to the jury issues not raised by the pleadings.
The rule last stated is not rendered inoperative because the court may erroneously and over objection have admitted testimony upon such extraneous issues. by the pleadings.
Payments subsequent to the filing of suit are not provable under the general issues, but must be set up by supplemental pleading.
A dismissal seasonably entered by leave of the court as to one of a number of defendants severally liable does not discharge from liability his co-obligors and codefendants.
(Additional Syllabus by Editorial Staff.)
The rule that fraud in procuring a note in renewal of a previous valid note for the same amount and on the same terms is no defense to an action on the new note, is not affected by Negotiable Instruments Act (Laws 1907, c. 83) § 55, providing that the title of a person who negotiates an instrument is defective when he obtained the instrument, or any signature thereto, by fraud, etc.
Where three persons signed notes with no contemporaneous agreement that the notes were to have other signers, but the payee procured the signatures of three others by fraud, it is incumbent on the original signers in order to avail themselves of the fraud upon the subsequent signers as a defense, to show injury to themselves because of the fraud practiced upon the others.
Appeal from District Court, Socorro County; before Justice Parker.
Action by the Bank of Commerce against Jaspar N. Broyles and others. From a judgment for plaintiff, defendants appeal. Affirmed.
An instruction not within the issues raised by the pleadings is erroneous.
The plaintiff bank brought suit upon two notes. These are identical in form except that the first is for $10,000 and the second only for $5,000. On the latter note a credit is alleged of $1,500 on April 16, 1908. The first of these notes is as follows: .
G. P. Anderson one of the signers of the notes is impleaded as William E. Pratt, that being apparently his real name. The defendant Broyles suffered default. The remaining defendants answered alleging in substance that they received no consideration for the notes and were merely accommodation signers thereon for the defendant Broyles; that their signatures were obtained by certain false and fraudulent representations made by plaintiff, which representations were in effect, first, that the defendant Broyles was solvent, and amply able to pay off all his just debts and liabilities; and, second, that said notes were amply secured by collateral deposited by Broyles with plaintiff bank. There were also allegations that at the time the defendants signed the notes plaintiff promised that Broyles could and would take care of them and defendants would never hear of them again. It was also alleged that the date of payment was at the time left blank, and the defendants were falsely and fraudulently informed by plaintiff that Broyles was to be given such time as he might require to pay the indebtedness, and that defendants were left in ignorance that the notes were to be made payable on demand. A reply put the new matter at issue and the case was tried to a jury. On the trial, testimony was received on behalf of both plaintiff and defendants, and at the close of the case in rebuttal plaintiff moved for an instructed verdict. The defendants did the same. The court thereupon announced that it sustained the motion of plaintiff as against all of the defendants except Lewis. Upon this announcement the plaintiff dismissed as to Lewis and the jury by direction of the court then brought in a verdict against all of the remaining defendants for the full amount claimed in the complaint. A motion for a new trial was overruled, and judgment entered pursuant to the verdict. Defendants thereupon appealed.
Holt & Sutherland, J. F. Bonham, and Marron & Wood, for appellants.
Dougherty & Griffith and James G. Fitch, for appellee.
POPE, J. (after stating the facts as above).
The chief assignment of error is that there was an issue of fact which the court should have sent to the jury. At the outset we are met by the contention of appellee that this alleged error of the court in withdrawing the case from the jury cannot be considered because both sides requested a peremptory instruction, and must therefore be considered as having stipulated that there was no issue of fact for the jury. The record upon this point, as above partially indicated, shows that upon the close of the testimony plaintiff moved for an instructed verdict because the defense as pleaded was not sufficient, and was not permissible under, nor in conformity with, the pleadings. Defendants likewise moved for a peremptory instruction, their ground being that the notes were signed in blank with the understanding that they were to run from four to six months, and that having been filled out on demand they were therefore not collectible under section 14 of the negotiable instrument act of 1907. Upon the announcement of the court that it sustained the motion for a peremptory instruction against all of the defendants but Lewis, and after the court had permitted a nonsuit as to the latter, the defendants insisted that "not only Lewis but his codefendants are entitled to a decision at the hands of the jury in this case." This contention was overruled, and a verdict against the defendants, except the defendant Lewis, instructed by the court. We are of the opinion that upon this state of the record the request by both sides for a peremptory instruction does not preclude the assignment of error made. It is true that in Beuttell v. Magone, 157 U.S. 154, 15 S.Ct. 566, 39 L.Ed. 654, it was said:
We deem the full import of this holding developed, however, by the recent case of Empire State Co. v. Atchison Co., 210 U.S. 1, 28 S.Ct. 607, 52 L.Ed. 931, where it was said:
In McCormick v. National City Bank, 142 F. 132, 73 C.C.A. 350, it was pointed out that Beuttell v. Magone was a case where there was no disputed question of fact, and it was there stated: "The decision in that case should not be extended to cases in which there are disputed questions of fact nor to cases in which the parties ask other instructions in the event the peremptory instructions asked by them respectively are not given."
So in Minahah v. G. T. Ry., 138 F. 37, 70 C.C.A. 463, it was said: "But it would seem that the decision (Beuttell v. Magone) cannot be regarded as furnishing a rule for cases where the evidence is conflicting,...
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