Farmers Bank of Mercer County, a Corp. v. Riedlinger
| Decision Date | 13 March 1914 |
| Citation | 146 N.W. 556,27 N.D. 318 |
| Court | North Dakota Supreme Court |
Appeal from a judgment of the District Court of Sheridan County Honorable W. H. Winchester, J.
Reversed.
Judgment and order of the District Court reversed and a new trial granted.
Thorstein Hyland, for appellant.
The offer in evidence by the plaintiff, holder of a negotiable promissory note, duly indorsed, where the indorsement is not in issue, made a prima facie case, the presumption being that plaintiff acquired same in due course, before maturity. Rev Codes 1905, § 6361; Kerr v. Anderson, 16 N.D 36, 111 N.W. 614; Shepard v. Hanson, 9 N.D. 249, 83 N.W. 20.
It is immaterial whether the same was purchased outright or held as collateral. Second Nat. Bank v. Werner, 19 N.D. 485, 126 N.W. 100; Monett State Bank v. Eubanks, 124 Mo.App. 499, 101 S.W. 687; Brown v. James, 80 Neb. 475, 114 N.W. 591; Galliher v. Galliher, 10 Lea, 29; Martin v. German American Nat. Bank, Tex. Civ. App. , 102 S.W. 131; Belanger v. Roberts, Rap. Jud. Quebec, 21 C. S. 518.
This action was brought to recover upon a promissory note for $ 600, given by the respondent to one Carl Semmler, dated June 13, 1911, due and payable five months after date. The complaint is in the usual form, and alleges that on or about the 14th day of June, 1911, said Semmler indorsed said note, that the plaintiff is the owner by purchase in the usual course of business, in good faith and for value. The answer admits the execution and delivery of the note, but denies that plaintiff is a good-faith purchaser or for value, and alleges that it is now, and at all times has been, the property of Carl Semmler.
After both parties had rested, the defendant moved the court to direct the jury to return a verdict in his favor, dismissing the case upon the ground that the evidence showed that plaintiff was not the owner of the note, but that it took it as collateral security, and that the plaintiff had failed to establish that, prior to the commencement of the action, it had exhausted its rights against the maker of the note, and could not recover from him. This motion was granted, and the action dismissed, and judgment entered accordingly. From the denial of a motion for a new trial and the judgment, plaintiff appeals.
We shall not consider the assignments of error in detail, but only refer to those which center around the motion for a directed verdict. The propositions of law are simple and elementary, and it would appear from the fact that no appearance has been made in this court by respondent, that he has so concluded.
The plaintiff offered in evidence the promissory note the making and delivery of which was admitted by the answer. The note showed a blank indorsement by the payee, Semmler. This indorsement was not negatived by the pleadings, and, when the note was offered, defendant objected to receiving it in evidence on the ground that no proper foundation had been laid, and because the indorsement was not dated, and did not show when the note was transferred. The court sustained this objection, and an exception was entered.
By producing the note in court, duly indorsed, indorsement not being traversed by the answer, plaintiff established prima facie that it acquired title thereto in due course of business. The statutory presumption was in force, and it was not necessary to offer evidence of the fact that the plaintiff was an innocent purchaser before maturity. Rev. Codes 1905, § 6361; Shepard v. Hanson, 9 N.D. 249, 83 N.W. 20; Kerr v. Anderson, 16 N.D. 36, 111 N.W. 614.
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