First Nat. Bank of Lincoln, Neb., v. Bennett

• Decision Date: 06 November 1905
• Citation: 90 S.W. 417,114 Mo. App. 691
• Court: Missouri Court of Appeals
• Parties: FIRST NAT. BANK OF LINCOLN, NEB., v. BENNETT et al.<SMALL><SUP>*</SUP></SMALL>

90 S.W. 417

114 Mo. App. 691

FIRST NAT. BANK OF LINCOLN, NEB., v. BENNETT et al.^*

Kansas City Court of Appeals. Missouri.

November 6, 1905.

APPEAL—SCOPE OF REVIEW—CREDIBILITY OF WITNESSES.

Where the evidence is not contradicted, and the lower court directs a verdict and adheres to its ruling in so doing, the Court of Appeals cannot interfere with the lower court's action, and, if the lower court does not adhere to its ruling, but grants a new trial, the Court of Appeals must then assume that the lower court deemed the credibility of witnesses involved, and will not interfere with the ruling.

Appeal from Circuit Court, De Kalb County; Alonzo D. Burnes, Judge.

Action by the First National Bank of Lincoln, Neb., against J. C. Bennett and another. From an order granting a new trial, plaintiff appeals. Affirmed.

W. H. Haynes, for appellant. Hewitt & Hewitt, for respondents.

BROADDUS, P. J.

The plaintiff is a national banking corporation located at Lincoln, Neb. The defendants are residents of De Kalb county, Mo. The plaintiff's suit is founded on a negotiable promissory note executed by the defendants and payable to Watson, Woods Bros. & Kelly Company, a corporation engaged in the importation and sale of stallions. The petition alleges the purchase and assignment of the note, before maturity, for a valuable consideration. Petition also alleges that the mortgage was given to secure the payment of said note upon a certain stallion, and judgment is asked for the amount of the note and interest, and for a foreclosure of the mortgage. Defendant Dice files a separate answer, admitting the execution of the note and alleging that he executed it as surety for his codefendant, Bennett. Defendant Bennett, in his answer, admits the execution of the note, but denies that plaintiff is the bona fide owner and holder thereof. For further answer, he alleges that the consideration for the note represents the purchase price of a stallion which was purchased from Watson, Woods Bros. & Kelly Company by defendant; that said company are importers and dealers in fine stallions, for sale to the public; that said company was aware of the fact that defendant wanted to purchase a stallion for breeding purposes; that it falsely represented that the said stallion was sound, and warranted him to be, and that he would prove to be, a reasonably fair or average foal getter; that defendant, relying upon said representation, was induced to purchase said stallion, and sign said note and mortgage representing his purchase price; that said stallion was not sound at the time nor since, but was, in fact, unsound; that he was then and is now a cribber, otherwise known as a "stump sucker"; that defendant soon after be received said horse discovered that he was not sound, but a cribber; that defendant notified said company of his unsound condition, whereupon said company notified defendant that, if the horse was not sound, it would make him sound, thereby inducing defendant to retain him; and that said horse proved wholly worthless as a foal getter. The evidence of plaintiff was that it bought the note for its face value, including interest to the date of purchase, before maturity, and without any notice or knowledge whatever of the alleged fraud in its inception. The evidence of the payment for the consideration of the note was that plaintiff gave the company what was denominated a "charge check," upon which the party could receive credit on his account or receive the money. The amount was credited on the bank book to its credit. The defendant introduced evidence tending to show the alleged fraud; but introduced none whatever to contradict that offered by the plaintiff as to the bona fides...