Kerr v. Anderson

• Decision Date: 20 February 1907
• Citation: 16 N.D. 36,111 N.W. 614
• Parties: KERR v. ANDERSON.
• Court: North Dakota Supreme Court

16 N.D. 36

111 N.W. 614

KERR

v.ANDERSON.

Supreme Court of North Dakota.

Feb. 20, 1907.

Syllabus by the Court.

An indorsee of a promissory note can recover thereon without showing that he purchased the same in the due course of business, in the absence of any showing that he did not purchase the same in due course.

A legal presumption exists that the indorsee purchased the same in due course of business, and this presumption continues, unless his title is shown to be defective through fraud or other reason.

A judgment notwithstanding a verdict will not be granted in every case where a directed verdict is erroneously denied. It is only when there is no reasonable probability that the defects in proof or pleading necessary to sustain the verdict can be remedied on another trial that such judgment will be ordered.

Appeal from District Court, McLean County; W. H. Winchester, Judge.

Action by O. W. Kerr against J. M. Anderson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.M. C. Spicer and Turner & Wright, for appellant. George P. Gibson, for respondent.

MORGAN, C. J.

Action upon a promissory note by the plaintiff, as indorsee, against the defendant, as maker thereof. The complaint alleges the execution and delivery and nonpayment of the note at maturity, and that the same was duly indorsed to the plaintiff before maturity for a valuable consideration in due course of business. The answer is a general denial. A jury was impaneled. Plaintiff established the due indorsement of the note by the payee, and offered the note in evidence, which was received without objection, and thereupon rested. Defendant rested without offering any evidence. Plaintiff moved the court to direct a verdict in his favor, and the motion was denied. The defendant then moved for a directed verdict in his favor, which was granted. Plaintiff excepted to the rulings on each of these motions. Plaintiff thereafter moved for a judgment notwithstanding the verdict, and for a new trial. Both motions were denied. Plaintiff appeals from the order denying these motions.

The record does not disclose the grounds upon which the trial court granted defendant's motion for a directed verdict. In their printed argument, the defendant's attorneys attempt to sustain the trial court's action upon the ground that plaintiff offered no evidence to show that he was an innocent purchaser of the note before maturity. It was not necessary to offer such evidence. The presumption is that the indorsement was made in the regular course of business. The statute expressly so declares, and every holder of negotiable instruments is deemed prima facie to be a holder in due course, unless the title of the person negotiating the instrument is shown to be defective for fraud or other reasons. When this is shown, the burden is then...