Bank v. Hickox.

• Decision Date: 16 February 1888
• Citation: 16 P. 912,5 N.M. 22
• Parties: CITY NAT. BANKv.HICKOX.
• Court: New Mexico Supreme Court

5 N.M. 22

16 P. 912

CITY NAT. BANK

v.HICKOX.

Supreme Court of the Territory of New Mexico.

February 16, 1888.

Error to district court, Santa Fe county.

If there is any evidence to sustain a cause of action or defense or an issue the case must be submitted to the jury.

P. S. Vandeveer, for plaintiff in error.

E. A. Fiske, for defendant in error.

BRINKER, J.

This was an action of assumpsit upon a negotiable promissory note, due 30 days after date, by the plaintiff, as indorsee for value before maturity, against the defendant as maker. The declaration alleged these facts, together with a demand of payment, and a refusal by defendant. The defendant filed two pleas, -the first was non assumpsit; the second, set-off in the form of the common counts. To the first plea plaintiff added a similiter, and to the second he filed a general replication. Upon these issues the cause was tried.

Upon the trial the plaintiff introduced in evidence the note sued on with its indorsements and the record of its protest, and also proved defendant's signature, and rested. Defendant then testified, over the objection of plaintiff, as follows: That he resided in Santa Fe, and carried on the business of jeweler on the plaza; he was acquainted with W. C. Bishop, and had been for two years; that during Bishop's residence in Santa Fe he made defendant's store his headquarters. On the evening of the 8th of June, Bishop went into defendant's store, and, in the presence of a workman and the partner of defendant, he told defendant that he had purchased a piece of property from Dr. Longwill, for which he had been paid $2,000, and exhibited to defendant a deed, and told defendant that he was liable to be called away that night, or in a day or two, but very probably that night, and he wished to sell the property he had purchased very cheap; that he would sell it to defendant for $300 over his bargain. Defendant replied that he did not know anything about the property; that he had never seen it, and did not like to invest in anything he knew nothing about. Bishop assured him that the property was worth the value; that the title was good; and he would only transfer it to the defendant on the condition that it was taken at once; that the deed must be made that night, or there would be no trade. Defendant attempted to argue the matter with Bishop, and finally turned away with the statement that he did not want to buy anything that he did not know anything about. This was about 8 o'clock, or after, in the evening. Bishop said it was a good bargain, and that he would sell it at that price for the reason that he had to go away. “He then stated that as an object to influence me to make a trade he would take in trade a set of diamonds that he had admired so much, for $750. They were marked $775.” Defendant then told Bishop that he didn't have the money to pay for the balance. Bishop answered that it did not take so much money, as he had given a mortgage on it for $1,000, on which he had paid $50, leaving a balance of $950 due on a reasonable length of time, making payments easy. Defendant said that there was yet $600 difference, and he had no money to pay for it, and he did not want to buy property without seeing it. Bishop said he would take defendant's note on 30 days. Defendant said he objected to giving his note, on general principles, for the reason that he did not want his paper offered for sale on the street. Bishop, as a further inducement, promised that if defendant gave his note, he (Bishop) would keep it himself, and positively agreed not to part with it. On this condition defendant told him he would make the trade. Defendant says: “I made another objection, and I told him I would not buy the property until I had seen it, and asked him to wait until next morning to see it, and he answered, 'No, Mr. Hickox; this must be a trade now. I will not give you time until morning;' consequently it was a matter to decide at once. Mr. Bishop asked me to wait for twenty minutes, (it was then 8:30,) and he would bring the deed. He went out and remained three-quarters of an hour, -until 9:30. He brought the deed, and we made the exchange. I gave him the note and delivered him the diamonds. I would not have sold the diamonds for $750.” Defendant further stated that he had no knowledge concerning the property, except that derived from Bishop; then Bishop remained in town several days after the trade; that defendant published a notice in the paper two days after the trade, and continued it for thirty days, concerning the note, but does not state what that notice was. On cross-examination defendant stated that the diamonds cost him between $400 and $500 in New York. He also stated that he had not paid the mortgage to Dr. Longwill.

There was evidence tending to show that the property was worth but $1,000; there was also evidence tending to show that it was worth $2,300. Dr. Longwill testified that he sold it to Bishop for $1,000. The deed, offered in evidence, from Longwill to Bishop, recited the consideration as $2,000. It was admitted on the trial that the conveyance from Bishop to the defendant recited a consideration of $2,300, and that such conveyance was made, by its terms, subject to a mortgage of $1,000, held by Longwill. This admission was made subject to the objection that the facts embraced were incompetent and immaterial on the trial. At the close of the testimony plaintiff asked the court to instruct the jury to find for the plaintiff. The defendant asked that the cause be submitted to the jury upon the evidence. The court instructed the jury that the evidence offered for the defendant was not sufficient to require the plaintiff to show that value was paid for the note by the plaintiff, and that they should return a verdict for the amount of the note,...