Johnson County Savings Bank v. Mills

• Decision Date: 11 April 1910
• Citation: 143 Mo. App. 265,127 S.W. 425
• Parties: JOHNSON COUNTY SAVINGS BANK v. MILLS.
• Court: Missouri Court of Appeals

127 S.W. 425

143 Mo. App. 265

JOHNSON COUNTY SAVINGS BANK v. MILLS.

Springfield Court of Appeals. Missouri.

April 11, 1910.

1. BILLS AND NOTES (§ 497)—ACTIONS—BURDEN OF PROOF—"HOLDER IN DUE COURSE."

Negotiable Instruments Act (Sess. Laws 1905, p. 250) § 59 (Ann. St. 1906, § 463—59), provides that, when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some other person under whom he claims acquired the title in due course. Section 52 (Ann. St. 1906, § 463—52) defines a "holder in due course" to be one who has taken the instrument under the following conditions: That it is complete and regular on its face; that he became the holder of it before it was overdue, and without notice of dishonor, in good faith, and for value; and that he had no notice of any infirmity in the instrument or defect in the title of his indorser. Held, that where, in an action on bills of exchange, defendant showed that his acceptances thereof were without consideration, plaintiff indorsee had the burden of proving that it took the bills in good faith and for value and without any notice of infirmity in the instruments or defect in the title of the indorser.

2. TRIAL (§§ 139, 140)—PROVINCE OF COURT AND JURY—QUESTIONS FOR JURY—WEIGHT OF EVIDENCE—CREDIBILITY OF WITNESSES.

The weight of the evidence and the credibility of the witnesses is for the jury.

3. APPEAL AND ERROR (§ 999)—FINDINGS— CONCLUSIVENESS.

The finding of the jury on a question of fact will not be disturbed.

4. BILLS AND NOTES (§ 489) — ACTIONS — PLEADING.

In an action on bills of exchange, where defendant's answer was a general denial, he was entitled to go into the original transaction, and show that his acceptances were without consideration without first showing that plaintiff was not a bona fide holder, on the answer as it stood; no proper objection being made.

5. APPEAL AND ERROR (§ 194)—OBJECTIONS BELOW—PLEADINGS—THEORY OF CASE.

Where the case was tried on the answer as it stood, and there was no objection to its sufficiency nor to evidence because of its insufficiency, the case would be determined on appeal on the theory that the answer was sufficient.

Appeal from Circuit Court, Greene County; Alfred Page, Judge.

Action by the Johnson County Savings Bank against J. J. Mills. Judgment for defendant, and plaintiff appeals. Affirmed.

Jos. V. Pitts, for appellant. Perry T. Allen, for respondent.

NIXON, P. J.

This was an action wherein the Johnson County Savings Bank, a corporation, was plaintiff, and J. J. Mills was defendant, founded on five bills of exchange, dated July 12, 1907, for $48 each, payable to the Rhode Island Manufacturing Company, a copartnership, or order, drawn on and accepted by J. J. Mills, and sold and delivered by the Rhode Island Manufacturing Company to the plaintiff, Johnson County Savings Bank, on September 5, 1907. The case was first tried before a justice of the peace in Douglas county, where a verdict was found for the defendant. After an appeal to the circuit court of Douglas county, plaintiff filed its application for a change of venue. The case was sent to the circuit court of Greene county, where the judge of Division No. 1 disqualified, and sent the case to Judge Alfred Page of Division No. 2. Upon trial by jury, the defendant again prevailed, and the plaintiff has appealed.

It is urged that the trial court in over-ruling plaintiff's motion for a new trial committed reversible error, for the reason that the evidence was not sufficient to sustain the verdict. The evidence for defendant shows that he was engaged in the mercantile business in Douglas county, and that in July, 1907, an agent of the Rhode Island Manufacturing Company took his order for a quantity of jewelry, that he was then too busy to read the contract, but that the agent told him to sign it, and then, if upon reading it over he should find it not satisfactory, he could cancel the order. He did cancel the order that evening by mail, but he received a reply advising him that the jewelry was on the road, and that his letter came too late. In a few days another agent came with some acceptances to be signed, but defendant refused to sign them, saying that was not the contract; that the contract was that, if he did not sell the jewelry in 90 days, it was to be taken up by the company. He told the agent they looked too much like notes to him, although the agent represented that they were only acceptances to...