Birch Tree State Bank v. Dowler

• Decision Date: 01 April 1912
• Citation: Birch Tree State Bank v. Dowler, 145 S.W. 843, 163 Mo. App. 65 (Mo. App. 1912)
• Parties: BIRCH TREE STATE BANK, Appellant, v. T. H. DOWLER, Respondent
• Court: Missouri Court of Appeals

145 S.W. 843

163 Mo.App. 65

BIRCH TREE STATE BANK, Appellant, v. T. H. DOWLER, Respondent

Court of Appeals of Missouri, Springfield

April 1, 1912

Appeal from Shannon Circuit Court.--Hon. W. N. Evans, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

L. B Shuck, G. S. Sizemore, L. O. Nieder and Thomason & Clark for appellant.

(1) Instruction No. 1 given on part of the defendant was erroneous because, first, scienter being the gist of defendant's defense on a charge of fraud and misrepresentation, the instruction should have told the jury that if the representations made to the defendant were false the defendant must have believed them to be true. Snyder v. Stemmons, 151 Mo.App. 156; Woods v. Letton, 111 Mo.App. 51; Cement Co. v. Stewart, 103 Mo.App 182; Lovelace v. Suter, 93 Mo.App. 429. Second, the instruction refers to the fraud and misrepresentation as alleged by the defendant, thereby directing the attention of the jury to the pleadings and not the evidence. Webb v. Carter, 121 Mo.App. 147; Proctor v. Loomis, 35 Mo.App. 488; McGinnis v. Railroad, 21 Mo.App. 399. Third, there was no proof that the note sued on was without consideration and it was error to tell the jury that if the note was without consideration the burden of proof shifted to the plaintiff. Reeves v. Letts, 143 Mo.App. 199; Jobes v. Wilson, 140 Mo.App. 291; Bank v. Rominee, 136 Mo.App. 57; Hahn v. Bradley, 92 Mo.App. 399. (2) The court erred in giving an instruction No. 3 given on part of the plaintiff, as that instruction assumes as a fact that there was a failure of consideration and cast the burden of proof upon plaintiff to show that it had no knowledge of that fact. Hamilton v. Marks, 63 Mo. 178.

Green & Wayland and Orchard & Cunningham for respondent.

(1) Instruction No. 1 has been approved by the St. Louis Court of Appeals on two different occasions. Bank v. Hammond, 104 Mo.App. 408. (2) If a maker of a promissory note introduces evidence tending to prove the note was procured by fraud the burden then devolves on the plaintiff to show that he is a bona fide holder for value. Hahn v. Bradley, 92 Mo.App. 404; Bank v. Hammond, 104 Mo.App. 409; Bank v. Hammond, 124 Mo.App. 180. (3) Where the evidence shows that the purchaser of notes had sufficient notice to put him on his guard, as to the fraudulent scheme under which they were procured from the maker and was therefore duly warned not to give any aid directly or indirectly to the swindle, the jury was justified in the case in finding the bank was not an innocent purchaser. Bank of Ozark v. Hanks, 142 Mo.App. 119; Bank v. Romine, 136 Mo.App. 57; Bank v. Romine, 154 Mo.App. 625. (4) This court well said, "The law has shown its consideration for the honest purchaser of negotiable paper and surrounded bona fide purchasers with every reasonable safeguard, but the legal maxim "caveat emptor" applies as well to the purchase of negotiable paper as to the purchaser of any other species of property. Bank v. Tuttle, 144 Mo.App. 302; Bank v. Hanks, 142 Mo.App. 119.

OPINION

COX, J.

Action upon a promissory note given by defendant to one W. H. Hurt and by him endorsed without recourse to plaintiff. The defense was fraud and want of consideration. In reply to this, plaintiff claimed to be an innocent purchaser for value before matured. Trial by jury, judgment for defendant and plaintiff has appealed.

Instruction No. 1 for defendant given by the court was as follows: "The court instructs the jury that if you should find from the evidence that the note sued on was without consideration and that it was obtained by fraud and misrepresentation as alleged by the defendant then in such event before the plaintiff would be entitled to recover, it must be shown by the greater weight of the evidence. First, that it is a bona fide owner of such note. Second. That it purchased said note for value before maturity. Third. That it had no knowledge of said want of consideration or fraud and misrepresentation." (Italics are ours.) This instruction is erroneous. It is never permissible to refer the jury to the pleadings to ascertain what the issues are, but it is the duty of the court to tell the jury what facts must be found by them to be true to warrant a verdict. [Sinnamon v. Moore, 161 Mo.App. 168, 142 S.W. 494; Webb v. Carter, 121 Mo.App. 147, 98 S.W. 776; Proctor v. Loomis, 35 Mo.App. 482; McGinnis v. Railroad, 21 Mo.App. 399; Jaffi v. Railroad, 205 Mo. 450, 103 S.W. 1026.]

When defendant admits the execution of the note, and defends upon the ground that it was obtained by fraud or was without consideration, the burden in the first instance is upon him to make a prima facie showing sustaining his defense and when this is done, the burden then shifts to plaintiff to prove that he was an innocent purchaser for value before maturity. The legal proposition contained in the above instruction is correct and had the court declared therein that if the jury should find that Hurt with the intent to deceive made certain representations to defendant, naming them, and that defendant relied thereon and was deceived thereby etc. as is usually done in cases in which the party alleging fraud is the plaintiff instead of instructing them that if they should find that the note "was obtained by fraud and misrepresentation as alleged by the defendant" the instruction would have been correct. An unfortunate thing connected with this case is the fact that this instruction is almost a verbatim copy of an instruction given in Bank v. Hammond, 104 Mo.App. 403, 79 S.W. 493, and in that case it received the apparent approval of the appellate court. The objection now made against this instruction was not made in that case, however, and while the instruction was approved in that case, the question now before us was not passed on. The objection made to the instruction in that case was, that it wrongly placed the burden of proof upon plaintiff to show that he was an innocent holder of the note and all the court said in relation to the instruction in that case was as follows: "The first instruction given for defendant is correct on the showing made by the defendant that the notes were procured by fraud; on this showing the burden was shifted to the plaintiff to show by the preponderance of the evidence that it was a bona fide holder of the note...