Link v. Jackson

• Citation: 147 S.W. 1114
• Parties: LINK v. JACKSON et al.
• Decision Date: 03 June 1912
• Court: Court of Appeal of Missouri (US)

147 S.W. 1114

LINK v. JACKSON et al.

Springfield Court of Appeals. Missouri.

June 3, 1912.

1. BILLS AND NOTES (§ 497) — ACTION BY INDORSEE — FRAUD BY PAYEE — BURDEN OF PROOF.

Where a note was procured by fraud, an indorsee suing thereon has the burden to show that he purchased it for value before maturity, and without notice of the fraud.

2. FRAUD (§ 49) — PLEADING — PROOF.

One basing an action or defense on fraud must allege and prove the facts on which he relies as constituting a fraud.

3. BILLS AND NOTES (§ 538) — ACTIONS — INSTRUCTIONS.

Where, in an action on a note by an indorsee, the maker alleged and proved, by uncontradicted evidence, fraud in the procurement of the note, an instruction that, if the note was obtained by fraud, the burden was on the indorsee to show that he purchased the note for value, without actual knowledge of the fraud in the procurement of the note, was not misleading.

4. APPEAL AND ERROR (§ 882) — INVITED ERROR — RIGHT TO COMPLAIN.

A party cannot complain of an instruction, where instructions given at his request are open to the same objection.

5. BILLS AND NOTES (§ 337) — BONA FIDE PURCHASER — KNOWLEDGE OF FACTS.

Where a note was procured by fraud of the payee, and an indorsee, when acquiring the note, had such knowledge bearing on that question as to cause him to believe that it was procured by fraud, he sufficiently knew that it was procured by fraud; but knowledge of facts only going to arouse suspicion are not sufficient, though, if he actually believed in the existence of the fraud at the time of the purchase, it was immaterial how meager the facts might have been which induced that belief.

6. BILLS AND NOTES (§ 538) — EVIDENCE — INSTRUCTIONS — "ACTUAL KNOWLEDGE."

Where, in an action by an indorsee of a note given by the maker for the purchase of a horse, the maker relied on the fraud of the seller of the horse, and the evidence showed the indorsee's knowledge of the sale of the horse and of his intimate association with the seller, and that the note was indorsed by the seller without recourse, and that after the maker discovered the fraud he attempted to get the note back from the seller, and that during the negotiations the indorsee and the seller had a secret conference, and the indorsee testified that when he bought the note he asked the seller why he indorsed it without recourse, and that the seller replied that he had a reason for it, but refused to disclose it, an instruction that if the note was obtained by fraud the burden was on the indorsee to show that he had no actual knowledge of the fraud at the time of the purchase, and that the words "actual knowledge" do not mean that the indorsee must have known the truth of the fraud, if any, but mean that if the indorsee had such knowledge of the fraud as showed a belief in the existence of the fraud there could be no recovery, was not erroneous, though the better practice is not to undertake to define the word "knowledge."

Appeal from Circuit Court, Texas County; L. B. Woodside, Judge.

Action by Ivan Link against J. W. Jackson and another. From a judgment for defendants, plaintiff appeals. Affirmed.

See, also, 158 Mo. App. 63, 139 S. W. 588.

Lamar, Lamar & Lamar, of Houston, for appellant. Dooley & Hiett and W. E. Barton, all of Houston, for respondents.

COX, J.

Action upon a promissory note executed by defendants to A. H. Willard and by him assigned to plaintiff. The defense was fraud in procuring the note, and against that defense plaintiff asserted that he was an innocent holder for value, without notice. The note was given in payment for an interest in a stallion by defendant Jackson, and the fraud alleged in procuring the note consisted in representations that the horse was a sure foal-getter, which defendants alleged was false; and that, for the purpose of inducing defendant Jackson and others to purchase an interest in the horse, Willard, the payee in the note, and his agents entered into a fraudulent scheme, by which they pretended to have sold certain shares in the horse to certain men of wealth and influence in the community, and had these men give to Willard their checks apparently in payment for these shares, and then Willard and his agents exhibited these checks to defendant and others, and represented that these men had purchased shares in the horse, which was not true; and that the checks were afterwards returned to their makers and never collected. There was a trial by jury, judgment for defendants, and plaintiff has appealed. This is the second appeal in this case. The first is reported in 158 Mo. App. 63, 139 S. W. 588, to...