Horton v. Bayne

• Decision Date: 31 March 1873
• Parties: BENJAMIN HORTON, Respondent, v. RICHARD W. BAYNE, Appellant.
• Court: Missouri Supreme Court

52 Mo. 531

BENJAMIN HORTON, Respondent,

v.RICHARD W. BAYNE, Appellant.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

Jno. J. Louthan and A. D. Lewis, for Appellant.

When the maker of a note endorsed before maturity proves lack of consideration therefor, the burden of proof is on the holder, to prove that he received it for value. (Story on Bills, 215, § 193; Bryant and Stratton's Commercial Law, 174, § 365; Rogers vs. Morton, 12 Wend., 484; Munroe vs. Cooper, 5 Pick., 412.)

James E. Withrow and John C. Anderson, for Respondent.

The holder of any negotiable paper before it is due, is not bound to prove that he is a bona fide holder for value, without notice. (Swift vs. Tyson, 16 Peters, 15; Story on Promissory Notes, (Ed. 1868,) 510, § 381; Potter vs. McDowell, 43 Mo., 97; Chitty on Bills, (11th Ed.,) 78 and 79; Savings Bank vs. Bates, 8 Conn., 505; Story on Bills 207, § 188; Bayley on Bills, § 3; W. S. 216, § 15; 1061 § 25.)

SHERWOOD, Judge, delivered the opinion of the court.

Plaintiff, Horton, brought suit in the St. Louis Circuit Court against Bayne on a negotiable promissory note, executed and delivered by the latter to one Partridge.

The petition, after the usual averments, states that the note sued on was, before its maturity, indorsed by Partridge for value and delivered to plaintiff.

The answer of Bayne admits the execution of the note, as charged in the petition; admits the transfer by indorsement of the note from Partridge to plaintiff, but claims that such indorsement was without consideration, and fraudulently made in order to cut off the defendant from making any defense, also for that purpose the assignment of the note was made subsequent to its maturity, and fraudulently antedated.

And the answer in conclusion pleaded a total failure of consideration; i. e., that the note was given for fruit trees, warranted to be sound and thrifty, but which were damaged, unsound, frozen and worthless, and that plaintiff was apprized of all this prior to the assignment.

There was a reply to this answer, traversing its chief alle gations.

At the trial, the only evidence adduced on the part of defendant tended to show that the trees, for which the note was given two or three days after their reception by defendant, were utterly worthless, but it did not appear that plaintiff was aware of any failure of consideration, and the court at the instance of plaintiff, instructed the jury that:

“Under the law it devolves upon the defendant to prove the fraudulent assignment of said note to plaintiff, or that it was assigned to plaintiff after maturity, or that the consideration of said note had wholly failed, and that plaintiff had notice of such failure of consideration at and before the assignment of said note to plaintiff by said Partridge.”

“The court further instructs the jury, that there is no evidence to prove or tending to prove either of these defenses, and the jury will find for the plaintiff the amount of said note and interest.”

The defendant excepted to the action of the court in giving these...