Corby v. Butler

• Decision Date: 28 February 1874
• Citation: 55 Mo. 398
• Parties: AMANDA CORBY, Executrix, etc., of JOHN CORBY, deceased, Respondent, v. SQUIRE T. BUTLER, Appellant.
• Court: Missouri Supreme Court

55 Mo. 398

AMANDA CORBY, Executrix, etc., of JOHN CORBY, deceased, Respondent,

v.SQUIRE T. BUTLER, Appellant.

Supreme Court of Missouri.

February Term, 1874.

Appeal from Andrew Circuit Court.

Vineyard & Young, for Respondent.

Loan & Van Waters,, for Appellant

ADAMS, Judge, delivered the opinion of the court.

This was an action on two negotiable promissory notes, which had been executed by the defendant to one S. P. DeWolf. Both are made payable to S. P. DeWolf or bearer, for value received, each for $190, and dated at Clinton county Mo., July 30th 1869; one payable six months after date, and the other one year after date. The petition alleges that the plaintiff's testator bought the notes for value before maturity. The answer does not deny the execution of the notes, but alleges that they were fraudulently obtained from the defendant, and sets out the facts constituting the fraud; and alleges that the plaintiff's testator did not take the notes in the usual course of trade for value and without notice of the alleged fraud. On the trial, the plaintiff gave evidence tending to show that the testator loaned DeWolf money, and took his notes for the loan, and as part of the same transaction took these notes as security for the loan before their maturity. The defendant then offered to prove the facts, set up in his answer, constituting the fraud, which the court excluded upon the ground that it appeared that the notes had been transferred to the testator by delivery, for value before maturity, and to this ruling the defendant excepted.

At the instance of the plaintiff the court instructed the jury, “that under the pleadings and evidence in this case they should find for the plaintiff, and assess her damages at such sum as they might believe from the evidence is due her on the notes sued on, not exceeding the amount due plaintiff on the notes of DeWolf, which were read in evidence.” To the giving of this instruction the defendant excepted. The jury found for the plaintiff and the defendant filed a motion for a new trial which was overruled, and he has appealed to this court.

The court committed no error in excluding the testimony offered by the defendant, to prove the alleged fraud in procuring the notes. There was no foundation laid for the introduction of such proof. There was no evidence tending to show that the testator took the notes without value, or after maturity, or not in the usual course of trade, or with notice of the alleged fraud. It would have...