Land Finance Corp. v. St. Johnsbury Wiring Co.

• Decision Date: 01 October 1929
• Parties: LAND FINANCE CORPORATION v. ST. JOHNSBURY WIRING CO
• Court: Vermont Supreme Court

147 A. 285

102 Vt. 256

LAND FINANCE CORPORATION v. ST. JOHNSBURY WIRING CO

Supreme Court of Vermont

October 1, 1929

February Term, 1929.

Bills and Notes---Fraud---Necessity that Purchaser of Trade Acceptance Disclose Facts and Circumstances To Show Good or Bad Faith---Evidence---Hearsay---Claimed Error Not Raised in Trial Court---Loss by Purchaser of Trade Acceptance Immaterial on Question of Good Faith---Witnesses---Impeachment Testimony of Witness in Another Case---Insufficiency of Record To Raise Question of Error in Exclusion of Evidence---Jury Question.

1. In ACTION OF CONTRACT on trade acceptance by indorsee thereof where proof in support of answer tended to show that instrument in suit was obtained by payee by means of fraud it devolved upon plaintiff, in offering proof to show that he was a holder in due course, to disclose facts and circumstances attending transfer from original payee to plaintiff, from which good or bad faith in transaction might be inferred.

2. Exclusion of testimony objected to as hearsay, held without error, where witness therein stated as a fact matters which must have been communicated to him by others, or which must have been based upon mere inferences of witness himself.

3. Ground of error not urged in trial court will not be considered in Supreme Court.

4. In ACTION OF CONTRACT on trade acceptance by indorsee thereof which defendant claimed payee obtained by fraud, evidence that plaintiff suffered loss at the hands of payee in transaction was wholly immaterial and irrelevant to issue, which was whether plaintiff had purchased trade acceptance in good faith.

5. In such action, where plaintiff introduced deposition of witness to show purchase of trade acceptance in question in good faith and in usual course of business, portions of testimony of witness given in another case where he was witness for plaintiff in suit on a similar trade acceptance, giving in detail his part in purchase of such trade acceptances from same payee, including acceptance there sued on and one now in question and stating several facts tending to show purchase was not in good faith, omitted in deposition, held admissible for impeachment purposes.

ACTION OF CONTRACT on trade acceptance by indorsee thereof. Answer setting up failure of consideration and fraud and misrepresentation by original payee. Trial by jury at the June Term, 1928, Caledonia County, Buttles, J., presiding. Verdict and judgment for the defendant. The plaintiff excepted. The opinion states the case. Affirmed.

Judgment affirmed

Sumner E. Darling, Jr., for the plaintiff.

Searles, Graves & Waterman for the defendant.

Present: WATSON, C. J., POWERS, SLACK, MOULTON, and WILLCOX, JJ.

OPINION

WILLCOX

This is an action of contract founded upon a trade acceptance, brought by the indorsee thereof. The proof, in support of the answer, tended to show that the instrument in suit was obtained of the defendant by the Autocrat Sales Corporation, the payee named therein, by means of fraud and misrepresentations, and was subsequently negotiated to the plaintiff in breach of faith and in fraud of the defendant.

The plaintiff, to meet the case made by the defendant, offered proof to establish that he was a holder in due course, and for this purpose it devolved upon the plaintiff to disclose the facts and circumstances attending the transfer from the original payee to the plaintiff, from which good or bad faith in the transaction might be inferred. Howard National Bank v. Wilson, 96 Vt. 438, 453, 120 A. 889.

Trial was by jury, with verdict for the defendant. The plaintiff brings the case here on exceptions and has briefed eight points for review. The first three are of the same general character and are considered together. They relate to the exclusion of certain parts of the deposition of one Leonard Blumberg, the president and treasurer and owner of all the stock of the plaintiff corporation. The answers were objected to by the defendant on the ground that they embraced matters of hearsay and were excluded by the court. In this there was no error, for by the excluded answers the witness stated as a fact matters which must have been communicated to him by others or which must have been based upon mere inferences of the witness himself. McCarthy's Admr. v. Village of Northfield, 89 Vt. 99, 94 A. 298, Ann. Cas. 1918A, 943; Gilfillan v. Gilfillan's Estate, 90 Vt. 94, 99, 96 A. 704.

The claims of the plaintiff now made in this Court were not urged below. Alleged ground of error not urged in trial court will not be considered in Supreme Court. Royal Bank v. Girard, 100 Vt. 117, 135 A. 497; Donovan v. Towle, 99 Vt. 464, 134 A. 588; Grapes v. Willoughby, 93 Vt. 458, 108 A. 421.

Exceptions 4 and 5 briefed by the plaintiff relate to the exclusion of two answers given by same witness in said deposition and are:

"It now definitely appears that the amount to be realized will be insufficient to pay the amount which the Land Finance Corporation has actually paid for those trade acceptances in cash, after deducting litigation expenses, the disbursements already incurred and paid, and there is at present a loss facing the Land Finance Corporation on the transaction of an approximation of about $ 10,000."

"We insisted that they pay...