McCormick v. Holmes

• Decision Date: 09 March 1889
• Citation: 41 Kan. 265,21 P. 108
• Parties: R. H. MCCORMICK v. EDWARD E. HOLMES
• Court: Kansas Supreme Court

21 P. 108

41 Kan. 265

R. H. MCCORMICK v. EDWARD E. HOLMES

Supreme Court of Kansas

March 9, 1889

Error from Lyon District Court.

THE opinion states the facts. Judgment for plaintiff Holmes, on January 22, 1887. The defendant brings the case here.

Judgment affirmed.

Kellogg & Sedgwick, for plaintiff in error.

Gillett Fowler & Sadler, for defendant in error.

HOLT C. All the Justices concurring.

OPINION

HOLT C.:

The defendant in error suggests that the case-made fails to show that all the evidence introduced at the trial is contained therein, and that the judgment should be affirmed for that reason. If he were correct in his claim, the judgment should be affirmed under the questions submitted for determination here. It is stated however in the case-made following the evidence: "And this was all the evidence in the case." The attention of some of the witnesses was called to a paper executed at the time the note sued upon was signed by the defendant; but there is nothing in the record to show that it was offered in evidence or read to the jury. It may have been the paper set forth in the answer, which was not denied under oath in the reply of plaintiff, and therefore admitted to be true; in any event, against any inference there was other evidence offered at the trial, we have the certificate that all the evidence is brought here. The positive statement of the trial judge must outweigh any mere inference that arises from the record in this case.

The defendant in error, as plaintiff, brought an action upon a promissory note for $ 320, signed by defendant on July 22, 1882, made payable to the order of M. H. Brown, and by him indorsed. The plaintiff claims to have bought the note in good faith before maturity; the defendant establishes by proof that the note was given by him to Brown as an earnest of good faith in a contract between himself and Brown to sell the right to put up a patent slat-wire fence in certain territory of Lyon and Chase counties. At the time of the giving of the note, the following contract was made:

"EMPORIA, KANSAS, July 22, 1882.-- I hereby agree to cause the sale of five miles of my fence in the district controlled by R. H. McCormick, before September 1, 1882 with his assistance, or return all notes, papers, etc., to him.

B. B. BERNARD, per M. H. BROWN, Gen. Agt."

The contract and note were put in an envelope; Brown and defendant took them to the Merchants' Hotel in Emporia to leave with the landlord; when they reached there he was absent, and Brown placed the package in a drawer of a table in the office of the hotel, and the landlord's wife said she would turn the envelope over to her husband. This was the last the defendant saw of the note until it was produced in court.

Defendant claims there was no delivery of the note. We believe, under the evidence in this case, this defense cannot be interposed against plaintiff if he is the purchaser of the note in good faith before maturity. (Whitmore v. Nickerson, 125 Mass. 496; Clarke v. Johnson, 54 Ill. 296; Burson v. Huntington, 21 Mich. 415; Angle v. Insurance Co., 92 U.S. 330; Morris v. Morton, 14 Neb. 358, 359; Randolph on Commercial Paper, § 230; Daniel, Neg. Inst., § 854, et seq.)

On the 24th day of July, 1882, Brown brought the note to plaintiff for sale, and one given by Clarke, also payable to his order. He purchased the note against Clarke, but did not buy the one sued on, at that time. He told Brown that if he would get a statement from defendant that the note was all right he would buy it; Brown afterward produced a statement purporting to be that of defendant, and which plaintiff then believed to be genuine, but now...