Dawson Town & Gas Co. v. Woodhull

• Decision Date: 25 March 1895
• Docket Number: 509.
• Citation: 67 F. 451
• Parties: DAWSON TOWN & GAS CO. v. WOODHULL
• Court: U.S. Court of Appeals — Eighth Circuit

67 F. 451

DAWSON TOWN & GAS CO. v. WOODHULL

No. 509.

United States Court of Appeals, Eighth Circuit.

March 25, 1895

Where a defendant has taken the plaintiff's deposition, he cannot prove part of the statements made by the plaintiff, as admissions, either by the evidence of the magistrate who took the deposition or by reading extracts from it.

This was a suit which was brought in the circuit court of the United States in the district of Nebraska by Curtis Woodhull the defendant in error, against the Dawson Town & Gas Company, the plaintiff in error, on two promissory notes each for the sum of $6,244, which were executed by the Dawson Town & Gas Company, in favor of J. T. Hoile, as payee, and were subsequently indorsed by him to said Woodhull. The defendant company pleaded, by way of defense, the following facts: That the notes did not belong to the plaintiff Woodhull, but were in fact the property of Hoile, he having transferred them to Woodhull without consideration, and that Hoile and Woodhull had conspired to have the suit brought in Woodhull's name to cut off defenses which existed against Hoile, and rendered the notes noncollectible in his hands; that the notes were executed and delivered in payment for certain lands in the state of Iowa belonging to the Perry Natural Gas Company, on which were located certain gas wells; that Hoile acted as agent for the sale of said property, and that, for the purpose of inducing a sale thereof to the defendant company, he made the following representations: That the Perry Natural Gas Company was owned in equal shares by him, the said Hoile, and certain other parties, and that he, the said Hoile, was authorized to transfer to the defendant the interests of each and all of said persons in the said Perry Natural Gas Company; that the said gas wells on the lands of the Perry Natural Gas Company had a continuous flow of gas; that the main gas well thereon would produce a flow of 4,000,000 feet of gas per day; and that the said gas wells produced gas at a pressure of about 125 pounds per square inch. The answer further averred that all of said representations so as aforesaid made were false, and were made by said Hoile with intent to defraud the defendant company; that the defendant company was deceived by said representations, and was thereby induced to purchase the land in question, and to deliver to said Hoile, in payment therefor, $30,000 of its capital stock, and the two notes in suit; that by reason of the fraudulent conduct of said Hoile the defendant had never received any consideration for the notes; and that, in consequence of said fraud, it had sustained damages in the sum of $25,000, for which it prayed judgment. The trial resulted in a verdict and judgment against the defendant company for the full amount of said notes, and accrued interest, to reverse which the defendant company has brought the case to this court by a writ of error.

John L. Webster, for plaintiff in error.

C. Frank Reavis and B. S. Baker (Isham Reavis, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

THAYER Circuit Judge, after stating the case as above, .

The first error that has been assigned for our consideration relates to the action of the trial court in permitting the notes in suit to be read in evidence without requiring the plaintiff to offer any evidence tending to show that he was the owner thereof. It is insisted in behalf of the plaintiff in error that inasmuch as it had denied the fact of ownership, and had alleged affirmatively that Woodhull had paid no consideration for the paper, and had conspired with Hoile to have the suit brought in his name, but for Hoile's benefit, the court should have required the plaintiff to furnish some proof of ownership before admitting them in evidence. We think that this assignment is untenable. The legal presumption of ownership which exists in favor of one who is ostensibly in possession of negotiable notes indorsed in blank by the payee, as these notes were, and who brings a suit thereon, is not overcome by a mere denial of the fact of ownership contained in the answer. When these notes were offered, they were in the hands of the plaintiff's attorneys. The legal presumption was that they had received them from the hands of their client, that they had ceased to belong to the payee, and that they were the client's property. There was no occasion, therefore, for offering testimony to confirm the presumption before the notes were admitted in evidence. Collins v. Gilbert, 94 U.S. 753, 754, and cases there cited; Brown v Spofford, 95 U.S. 474, 478; Daniel, Neg. Inst. Secs. 812, 574; Tied. Com. Paper, Sec. 312.

It is further assigned for error-- and these assignments may be considered together-- that the court erred in permitting the deposition of Curtis Woodhull, the plaintiff, to be read in his own favor, he being present at the trial, and in refusing to allow the deposition of Thomas Cary Welch to be read in behalf of the defendant company. Both of these depositions appear to have been taken and filed as evidence in the case by the defendant. The plaintiff's deposition was first taken, but not desiring to use it after it had been obtained and filed, for fear, no doubt, that the defendant would be concluded by certain statements therein contained, counsel for the defendant company resorted to the novel expedient of securing the deposition of said Welch, who was the officer before whom the plaintiff's deposition had been reduced to writing, for the purpose of proving by him certain statements that had been made by the plaintiff in the course of his examination. On the trial of the case the deposition of Welch was first offered by the defendant, but the plaintiff interposed an objection to the reading of the same and it was thereupon...