Hamilton v. Marks
| Decision Date | 28 February 1873 |
| Parties | N. B. HAMILTON, Respondent, v. ABR. MARKS AND HIRAM BLACK, Appellant. |
| Court | Missouri Supreme Court |
Appeal from the Linn County Court of Common Pleas
A. W. Mullins, for Appellant.
If the maker prove the note had been obtained from him by fraud, or was fraudulently put in circulation by the payee, the holder must prove that he took it honestly, without knowledge of the fraud. (Story on Promissory Notes (5th Ed.) § 196, and note; 1 Parsons on Notes and Bills, 188, and note ( h); Bailey vs. Bidwell, 13 Meeson & Welsby, 73; Woodhull vs. Holmes, 10 John., 231; Vallett vs. Parker, 6 Wend., 622; Small vs. Smith, 1 Denio, 583, 586; Monroe vs. Cooper, 5 Pickering, 412; Vathir vs. Zane, 6 Gratt., 246; Ross vs. Bedell, 5 Duer., 462; Catlin vs. Hansen, 1 Duer., 322; Devlin v. Clark, 31 Mo., 22; Renshaw vs. Wills, 38 Mo., 201; McKesson vs. Stanbury, 3 Ohio St., 156; Sandford vs. Norton, 14 Vt., 228; Stalker vs. McDonald, 6 Hill., 93.)
Whatever is notice enough to excite attention, and put a party on his guard and call for inquiry, is notice of everything to which such inquiry might have led. (Story on Bills, (4th Ed.) § 194; 3 Kents Com. Marg., pp. 79, 82; 1 Parsons N. and B., 257, 259; Renshaw vs. Wills, 38 Mo., 201; Devlin vs. Clark, 31 Mo., 22; Goodman vs. Simonds, 19 Mo., 106; Rhodes vs. Outcalt, 48 Mo., 367; Speck vs. Riggin, 40 Mo., 405; Louisiana St. Bk., vs. The N. O. Nav. Co., 3 La. An., 294; Kennedy vs. Green, 3 Mylue & Keen., 719; Cone vs. Baldwin, 12 Pick., 545; Gould vs. Stevens, 5 Am. R., 265; (43 Vt. 125.) Howard vs. Kimball, 6 Am. R., p. 740. (65 N. C., 175.)
G. W. Easley, for Respondent.
The holder of a negotiable note, for value, without notice, can recover it, notwithstanding that he took it under circumstances which ought to excite the suspicion of a prudent man.
In order to destroy such holder's title, it must be shown that he took it mala fide.
All the cases to the contrary were based upon Gill vs. Cubitt, 3 B. & C., 466; (10 Eng. Com. Law Rep., 144,) which has been overruled by Goodman vs. Harvey, 4 Adolph & Ellis, 870; (31 Eng. Com. Law Rep., 381.)
This was an action on a promissory note, executed by the defendants, to one T. H. Cooley, and by Cooley assigned to plaintiff before maturity. The separate answers of the defendant Marks set up a conditional sale of a farm to him by Cooley, that the conveyance was made to him for the purpose of making the sale to one Walker, and that the note was executed simply to secure Cooley in the faithful discharge by Marks of the trust; and that in case no sale should be made to Walker before maturity of the note, the note was to be void.
This answer also set up a fraudulent conspiracy between Walker and Cooley to sell the farm to Marks, and charged the defendant with notice of the fraud, etc. The answer also set up what the consideration of the assignment was, and that it was not for value, etc.
The plaintiff replied, denying specifically all the material allegations of the answer.
Both parties gave evidence conducing to establish their respective sides of the case.
The jury found a verdict for the plaintiff for something less than the amount of the note, and a motion for a new trial was made and overruled.
The only point which we are called upon to review, grows out of the instructions given for the plaintiff and the second instruction of defendant's, refused by the court. The refused instruction reads: “The Jury are instructed, that if they believe from the evidence that the note sued on was obtained by Cooley from the defendant Marks by fraud practiced upon him by said Cooley; then in order to affect the plaintiff with such fraud, it is not necessary that he should have had actual and positive knowledge of such fraud, before the assignment of said note to him; but that is sufficient notice if it be such as men usually act upon in the ordinary affairs of life.”
The objection urged against this instruction, is, that the assignee of a negotiable note before maturity must have actual or express notice of any alleged infirmity or fraud in the execution or consideration of the note, and that circumstances which ought to put a prudent man on inquiry are not sufficient notice to invalidate the note in his hands.
Judge Story in his work on Promissory Notes uses this language: “It is agreed on all sides, that express notice is not indispensable; but it will be sufficient if the circumstances are of such a strong and pointed character as necessarily to cast a shade upon the transaction, and to put the holder on inquiry.” (Story on Promissory Notes, § 197.) This doctrine as here laid down, was the established law of England for a long time, but recently the English Courts have abandoned it, upon the alleged ground of its inconvenience, and its obstruction to the free...
To continue reading
Request your trial
-
Mangold v. Bacon
...of what ought to be considered as resjudicata." (p. 172.) In that case those reasons were found to exist and the former opinion (52 Mo. 78) was departed from. v. St. Louis, 167 Mo. 620, 67 S.W. 610, is a notable case -- a cause celebre, about which traditions fondly linger. It had been up b......
-
Mangold v. Bacon
...of what ought to be considered as res judicata." 63 Mo. 172. In that case those reasons were found to exist and the former opinion (52 Mo. 78, 14 Am. Rep. 391) was departed from. Fuchs v. St. Louis, 167 Mo. 620, 67 S. W. 610, 57 L. R. A. 136, is a notable case — a cause célèbre — about whic......
-
Link v. Jackson
...inquiry, reasonably leading to a knowledge of the truth, would be sufficient for a court to infer and find such knowledge. [Hamilton v. Marks and Black, 52 Mo. 78.] But in the year 1876, in the case of Hamilton Marks, 63 Mo. 167, the question of notice as applied to negotiable paper was bro......
-
Crawford v. Spencer
... ... Mo.App. 47; Williams v. Tiedeman, 6 Mo.App. 269; ... Kent v. Miltenberger, 13 Mo.App. 510; McLean v ... Stune, 15 Mo.App. 317; Ream v. Hamilton, 15 ... Mo.App. 577. These wager contracts are gambling devices ... Relief against such contracts has always been granted by ... courts of ... ...