Besse v. Morgan
| Decision Date | 22 November 1921 |
| Docket Number | 10316. |
| Citation | 202 P. 1012,84 Okla. 203,1921 OK 390 |
| Parties | BESSE v. MORGAN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 10, 1922.
Syllabus by the Court.
When it is shown that the title of any person who has negotiated a negotiable instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the title as a holder in due course, except as otherwise provided in section 4109, Revised Laws 1910.
The purchaser of a negotiable instrument, in order to be a holder in due course, must come within the requirements of section 4102, Revised Laws 1910, defining such holder.
Even though the defendant offers no evidence on rebuttal to disclose that the plaintiff was not a bona fide holder of the note in due course, but where defendant has denied said fact and the evidence introduced on the part of the plaintiff to prove such fact was of such nature that men of ordinary intelligence might draw different conclusions therefrom, it is not error for the court to refuse to instruct a verdict for the plaintiff.
Appeal from Superior Court, Okmulgee County; R. E. Simpson, Judge.
Action by A. Besse against Barclay Morgan. Verdict and judgment for the defendant, and the plaintiff appeals. Affirmed.
Arthur Fuller, of Pittsburg, Kan., and Scothorn, Boardman & Withington, of Oklahoma City, for plaintiff in error.
Morgan Pinkston & Hepburn, of Henryetta, for defendant in error.
The plaintiff commenced this action in the superior court of Okmulgee county to recover upon two promissory notes in the sum of $250 each, both dated January 8, 1912, and due January 1, 1913, executed by the defendant to the Henryetta Brick & Tile Company and indorsed to the plaintiff before maturity for valuable consideration. The defendant answered, and admitted the execution of the note, but denied that the same was ever delivered to the Henryetta Brick & Tile Company, and denied that there was any consideration for said note, and denied that said notes were ever sold before maturity or in due course of business.
As a further defense he alleged that one Neal Allen and others proposed to the Commercial Club of Henryetta to form a corporation under the style of Henryetta Brick & Tile Company and agreed to erect a brick and tile company at Henryetta for a bonus of $4,500, which bonus was to be subscribed by the citizens of Henryetta, and the subscribers were to give two notes each for one-half of his subscription, both payable January 1, 1913, and to be held in trust by a bank, one note to be delivered when the Brick & Tile Company had the machinery for the plant on the side track at Henryetta, and the other to be delivered when the plant was completed. The subscribers were to receive brick at $4.50 per thousand for the amount of their subscription. It was alleged said brick and tile factory was never erected, and no brick was ever manufactured, and the machinery was never delivered on the side track at Henryetta; that the said Allen and associates obtained possession of said notes and in a manner unknown to said defendant and had never complied with the contract, and if the plaintiff purchased said notes, he did so with full knowledge of all the facts. With the issues thus framed, the case was submitted to the jury, and a verdict returned in favor of the defendant. From said judgment the plaintiff has appealed.
For reversal, it is contended, first, that the court erred in overruling the demurrer to the testimony offered on behalf of the defendant.
It will be necessary to consider first whether the evidence of the defendant was sufficient to submit to the jury the questions of fact, to wit, whether the consideration of the notes had failed, and whether Allen and associates had complied with the agreement and were rightfully in possession of said notes. Defendant introduced in evidence the subscription contract signed by the defendant and numerous other parties regarding the execution and delivery of said notes. The contract provided, first, in consideration of the erecting of a brick plant at Henryetta on or before the 1st of May, 1912 the parties agreed with Allen and associates that they would deliver to same bank in the city of Henryetta promissory notes payable to Allen and associates due January 1, 1913, for the sum set opposite their respective names, said notes to be held by the bank, said notes to pay for brick at $4.50 per thousand at plant. It is admitted that no plant was ever erected, and that no brick was delivered at the plant for the use and benefit of the signers of the note; therefore the consideration of the note failed. There was some evidence Allen had not complied with the contract that entitled him to possession of the notes, and it was not error to overrule a demurrer to the defendant's evidence.
It is next contended that the evidence conclusively shows that the plaintiff was a purchaser for value and before maturity without notice, and it was error for the court to refuse to instruct the jury to return a verdict in favor of plaintiff.
Section 4109, R. L. 1910, provides as follows:
See Lambert v. Smith, 53 Okl. 606, 157 P. 909.
By application of this rule the burden was upon the plaintiff to prove that he was the holder in due course. Section 4102, R. L. 1910, defined who are holders in due course.
While the general rule is that, where the consideration for a negotiable...
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