Cochran v. Stein
| Decision Date | 28 June 1912 |
| Docket Number | 17,422 - (36) |
| Citation | 136 N.W. 1037,118 Minn. 323 |
| Parties | LEW W. COCHRAN v. OTTO J. STEIN and Others |
| Court | Minnesota Supreme Court |
Action in the district court for Stearns county to recover $867 upon a promissory note. The replies to the separate answers were general denials. The case was tried before Taylor, J., and a jury which rendered a verdict in favor of defendants. From an order denying plaintiff's motion for judgment notwithstanding the verdict or for a new trial, he appealed. Affirmed.
Promissory note -- burden of proof on indorsee.
Where in an action by an indorsee of a negotiable note, it was conceded that the note had been obtained from the defendants the makers, by the fraud of the payees, the burden was cast upon the plaintiff to establish his claim that he purchased the note from the payees for value, before maturity, in due course of business, and without notice.
"In due course of business."
"In due course of business" involves indorsement to the holder before maturity, where the instrument is payable to order.
Question of fact.
Whether the plaintiff was a bona fide purchaser of the note sued on held, under the evidence, for the jury.
Evidence -- specimens of handwriting.
Where the genuineness of handwriting is in issue, specimens of handwriting, admitted or proved to be genuine, are admissible for the purpose of comparison.
Evidence -- lost instrument.
A witness, who has seen a lost instrument alleged to have been written and signed by a certain person, may, if otherwise competent, testify, from a comparison of admittedly genuine specimens of such person's handwriting introduced in evidence for the purpose of comparison, that the lost instrument was written and signed by such person, though the witness has never seen any specimens of such person's handwriting, either admittedly genuine or otherwise, other than that in which the lost instrument was written and signed and the exhibits submitted to him for comparison.
John A. Roeser, for appellant.
Stewart & Brower, for respondent.
Action to recover the amount claimed to be due on a negotiable promissory note by an alleged bona fide purchaser thereof. Defense, a denial of the plaintiff's alleged bona fide holdership, and allegations, in substance, that the note was obtained by fraud. The case was tried to a jury, and the defendants had a verdict. This is an appeal from an order denying the plaintiff's motion in the alternative for a judgment notwithstanding the verdict or for a new trial.
It appeared on the trial that the defendants, on September 16, 1903, executed their negotiable promissory note, dated on that day, therein promising to pay to O'Connell & White, or order, $867, on July 1, 1906, which note had been indorsed, without recourse, by the said O'Connell & White to this plaintiff. The plaintiff there claimed that he purchased the note from the payees in February, 1904, for value, in due course of business, without notice, and that it was then and there indorsed by them to him. All of these claims the defendants denied, and claimed especially that the note was not indorsed until after its maturity.
The plaintiff made the following concession on the trial: The note referred to was given to O'Connell & White for a part of the purchase price of a stallion named Royal, sold by them to the defendants; the note was obtained by them from the defendants by fraudulent representations, relied upon by the defendants, as to the breeding qualities of the animal, and which were then known to O'Connell & White to be untrue; that the horse was of no value as a breeder, which was the purpose for which he was sold to the defendants, and was returned by the defendants to O'Connell & White in May, 1904, and was retained by them; and, further, that as against O'Connell & White these defendants have a defense to the note in suit upon the grounds above stated.
The plaintiff has twenty-one assignments of error, twenty of which are based upon his contention that it was conclusively established on the trial that he was a bona fide purchaser and holder of the note from the payees -- which claim he concedes is the only issue in the case -- and these twenty assignments may be grouped and require no separate discussion. The other assignment will be adverted to later.
1. Immediately after the plaintiff's concession, made on the trial and above referred to, to the effect that the note in suit had been obtained by fraud from the defendants, the burden was placed upon him to establish his claim that he purchased the note from the payees for value, before maturity, in due course of business, and without notice. Park v. Winsor, 115 Minn. 256, 132 N.W. 264. And the phrase "in due course of business" required proof on his part sufficient to fairly satisfy the jury that the note was indorsed to him by O'Connell & White, before its maturity, to entitle him to recover in this action; for one who takes negotiable paper, payable to order, otherwise than by indorsement, does not take it in due course of business, and hence is not a bona fide holder. 1 Dunnell, Minn. Dig. §§ 951, 929.
As before stated, the plaintiff claims that the note in suit was indorsed to him in February, 1904, while the defendants deny that the plaintiff was a bona fide purchaser, and specifically claim that the note was not indorsed by the payees, O'Connell & White, until after July 1, 1906, the date when the note matured. After careful consideration of the evidence, we have concluded that so far as the sufficiency thereof is concerned, to sustain the verdict, the only question necessary to discuss or determine is the claim of the plaintiff that he purchased the note from, and also that it was indorsed to him by, the payees before maturity.
It would serve no useful purpose to attempt to detail the testimony on these questions. The plaintiff testified that he purchased the note, and that it was indorsed to him by the payees therein named, in the early part of February, 1904. His testimony in the latter regard was corroborated by that of his wife, attorney, and stenographer and also by that of a money lender of Crawfordsville, Indiana, the place of the plaintiff's residence, and also by the cashier of the First National Bank of St. Cloud. For the defendants, testimony was offered by two of them tending to show that between the twelfth and...
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