Furth v. Cafferata

• Decision Date: 04 April 1922
• Docket Number: No. 16875.,16875.
• Parties: FURTH v. CAFFERATA
• Court: Missouri Court of Appeals

240 S.W. 476

FURTH v. CAFFERATA

No. 16875.

St. Louis Court of Appeals. Missouri.

April 4, 1922.

Appeal from St. Louis Circuit Court; Frank Landwehr, Judge.

"Not to be officially published."

Action by Henry H. Furth against Zohn Cafferata and another. Judgment for defendants, and from an order granting plaintiff a new trial, the named defendant appeals. Affirmed.

Frumberg & Russell, of St. Louis, for appellant.

Henry H. Furth, of St. Louis, pro se.

BIGGS, C.

Plaintiff sues as a holder for collection of a promissory note for $3,200, which was concededly executed by the defendant John Cafferata, and was payable to J. W. Jennings, and alleged to have been indorsed before maturity for value, to one. Emil Nathan, who indorsed the note to plaintiff as his agent for collection. Credit is given on the note by reason of the sale of certain to have been attached to the note as collateral. The petition is in the usual form, and judgment is asked for the balance due on the note amounting to $679.91.

The payee of the note Jennings, who was a defendant below, answered by general denial. The answer of the defendant Cafferata after admitting the execution of the note denies each and every other allegation in the petition, and further specifically denies that the plaintiff is the owner of the note. The answer further sets up facts showing a failure of consideration for the note, and it is also charged that Jennings was the agent of Emil Nathan in the transaction, and that said Nathan at all times well knew that said note was without consideration, and also knew the facts set forth in the answer relative to the circumstances of the execution thereof, and that the plaintiff holds the note as the agent of Nathan. After a trial by a jury there was a verdict in favor of both defendants. Upon the filing of a motion for new trial, the court sustained the same on the ground that it erred in refusing to peremptorily instruct the jury to bring in a verdict in favor of plaintiff. Defendant Cafferata appeals from the order granting plaintiff a new trial.

The plaintiff made a prima facie case by introducing the note in evidence, proving the indorsements thereon, and the fact that it was duly protested and all legal steps taken to fix the indorser's liability. The plaintiff went further by introducing evidence tending to prove that his principal, Nathan, purchased the note in good faith for value before maturity, which tended to establish, in addition to the presumption which arises from being the owner of the note, that he was a bona fide holder in due course.

It will be unnecessary to set out the defendant's evidence in detail, which tended to show a failure of consideration for the note as between the maker, Cafferata, and the payee, Jennings. The question as to whether the note lacked consideration was a controverted question of fact in the case, but the defendant's evidence was sufficient to make the question one for the jury, and it may be assumed that such fact was established. However, evidence tending to prove a failure of consideration between the original parties to the note was not sufficient to establish a defense as against Nathan the bona fide holder in due course. It was necessary for the defendant to go further and introduce evidence tending to prove that Nathan had notice of the fact of the alleged want of consideration. It is contended by defendant and argued by counsel that Jennings, the payee of the note, was the agent of Nathan in the transaction, and therefore Jennings' knowledge of the circumstances of the execution of the note and of its alleged lack of consideration was Nathan's knowledge, and therefore was notice to him.

We have examined the record carefully to determine whether or not there was any evidence tending to establish such agency, and have concluded any finding to that effect would be based upon pure speculation and conjecture. There is no direct evidence of such agency, and we do not think that there is any evidence in the record from which such fact could reasonably be inferred.

It is argued by defendant's counsel that there are certain suspicious circumstances in the transaction from which the jury might infer that Jennings was acting in the transaction for Nathan, and that Nathan was the real party in interest, but this does not appear to be a reasonable deduction from the record presented.

A careful examination of all the evidence forces us to a conclusion that there is no substantial evidence tending to overthrow the prima fade showing made by plaintiff to the effect that he was a bona fide holder of the note in due course. Such being the state of the record under the rule now established in this state, it was the duty of the court to peremptorily instruct the jury to return a verdict for the plaintiff. Downs v. Horton (Mo. Sup.) 230 S. W. 103 (not yet [officially] reported); Ensign v. Crandall ...