Metz v. Jackson

• Decision Date: 10 November 1913
• Docket Number: 2513
• Citation: 43 Utah 496,136 P. 784
• Court: Utah Supreme Court
• Parties: METZ v. JACKSON

136 P. 784

43 Utah 496

METZ v. JACKSON

No. 2513

Supreme Court of Utah

November 10, 1913

APPEAL from District Court, First District; Hon. W. W. Maughan Judge.

Action by J. I. Metz against David Jackson.

Judgment for defendant. Plaintiff appeals.

AFFIRMED.

R. S Spence for appellant.

B. C Call for respondent.

FRICK, J. McCARTY, C. J., and STRAUP, J., concur.

OPINION

FRICK, J.

This action was commenced by the appellant as indorsee of a certain promissory note dated May 8, 1906, payable to S. Metz & Sons or order one year after date, which was signed by the respondent. Neither the note nor the complaint disclosed whether the appellant obtained the note before or after maturity, but in that respect he relied upon the presumption created by Comp. Laws 1907, section 1611. The respondent filed an answer in which, after stating that the appellant was not a holder in due course, he set up various defenses. One defense was that the note was obtained by fraud and false representations, and another that the consideration had wholly failed. The case was tried to the court; a jury having been waived by both parties. The court made findings of fact, which, in substance, are: That on the 8th day of May, 1906, respondent made and delivered to S. Metz & Sons the promissory note sued on; that on said date said S. Metz & Sons by M. C. Metz, made certain material representations concerning the qualities and physical condition of what they represented to be a thoroughbred stallion, which they offered to sell or trade to respondent; that respondent relied on said representations, all of which were false, and made to deceive and defraud, and did deceive, the respondent; that as soon as respondent learned that the representations were false, and of the actual physical condition of said stallion, he "rescinded the contract for the sale of said stallion, including said promissory note," and it is further found "that defendant (respondent) did not receive from the said M. C. Metz, or any other person, any consideration whatever for the said promissory note, and said S. Metz & Sons, by M. C. Metz, thereupon agreed with the defendant that said note be rescinded, and agreed to return the said promissory note to the defendant to be canceled; that said S. Metz & Sons failed to deliver said note to defendant to be canceled as aforesaid; that said S. Metz & Sons, upon the refusal of the defendant to accept said stallion, took same away, and that said stallion was not at any time in the possession of the defendant." The court further found that said note was not indorsed to appellant before the maturity thereof, "but on the contrary the said note remained in the possession of said S. Metz & Sons, and under their control until after the maturity of the said note." As conclusions of law the court found that "said promissory note was obtained by the said S. Metz & Sons from the defendant by fraud and false representations," that neither the appellant nor the person under whom he claims "is or was a holder in due course prior to the maturity of said note," and that respondent is entitled to judgment canceling said note, which was accordingly entered.

The principal contentions on the appeal are that the court erred in not sustaining appellant's motion to strike respondent's first amended answer to the complaint and in not sustaining appellant's general demurrer to the second amended answer. The court did sustain a demurrer to the first amended...