Miller v. Marks

• Citation: 46 Utah 257,148 P. 412
• Decision Date: 01 December 1914
• Docket Number: 2643
• Court: Utah Supreme Court
• Parties: MILLER v. MARKS

148 P. 412

46 Utah 257

MILLER v. MARKS

No. 2643

Supreme Court of Utah

December 1, 1914

Rehearing denied May 8, 1915.

Appeal from District Court, Third District; Hon. M. L. Ritchie Judge.

Action by N.W. Miller against L. A. Marks.

Judgment for plaintiff. Defendant appeals.

AFFIRMED.

M. E Wilson for appellant.

Booth, Lee, Badger, Rich & Parke for respondent.

STRAUP J. FRICK, J., concurring. McCARTY, C. J., dissenting.

OPINION

STRAUP, J.

This is an action to recover on a negotiable promissory note executed and delivered by the defendant to one Conrad, the payee, and by him indorsed and delivered to the plaintiff before maturity. The defense is that the note was given without consideration, and was obtained through fraud and misrepresentations on the part of Conrad, and that the plaintiff took it without value and with notice. The case was tried to the court, who found that the note was given without consideration, and was obtained through fraud, but found that:

"The plaintiff was an innocent purchaser for value without knowledge of any defect in or defenses to said note, and acted in good faith in said transaction, and is a holder in due course of said note for a valuable consideration paid before maturity." Judgment was accordingly entered in favor of the plaintiff. The defendant appeals. He urges that the quoted finding is not a finding of fact, but mere statements of conclusions, and is insufficient, as to such issue, to support the judgment; that the court cast the burden of proof on him to show that the plaintiff was a purchaser with notice, and not in good faith; and that the evidence, without substantial conflict, shows that the plaintiff did not acquire title as a holder in due course.

A finding of what the plaintiff paid or gave for the note, of the ultimate facts and circumstances under which he purchased it, and what knowledge or notice, or the want of it, concerning the alleged and found defect or infirmity, was possessed by him, would have been more in compliance with the Code respecting findings. While the finding complained of is more in the nature of conclusions than of fact, still we think it sufficient as to such issue to support the judgment. Bank v. Nelson, 38 Utah 169, 111 P. 907.

In an opinion delivered by the court after a submission of the case for decision, but before findings were made, the court stated, in effect, that the burden of proof was on the defendant to show that the plaintiff purchased with notice, and not in good faith. But thereafter, and before findings, the case was reopened, reargued, and resubmitted. The opinion is settled in the bill of exceptions, and is made a part of the record. Because of what was stated therein, the defendant asserts that the court, as to that issue, erroneously cast the burden of proof on him. The rule is, as contended by the defendant, that upon proof of defective title the burden was on the plaintiff to show that he acquired title as a holder in due course, which, so far as here material, means that he took the note in good faith and for value, and that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it to him. Comp. Laws 1907, Sections 1604, 1611; Leavitt v. Thurston, 38 Utah 351, 113 P. 77. The respondent does not dispute the proposition, but asserts there is nothing properly before us to show that the court cast such burden on the defendant, and urges that the opinion, though settled in the bill, can nevertheless not be considered by us; and though it be considered, yet the record, showing the reopening, reargument, and resubmission of the case after the opinion was delivered, and before findings, does not affirmatively show that the court so regarded the question of burden upon finally considering the evidence and making findings.

It is true, as contended, that the opinion cannot be looked to to ascertain what the court found or decided. The findings, conclusions, and judgment, as made, filed, and entered, must alone be looked to for that, and cannot be qualified or limited by any prior oral or written opinion of the court or judge. Grand Central M. Co. v. Mammoth M. Co., 29 Utah 490, 83 P. 648; Victor M. Co. v. National Bank, 18 Utah 87, 55 P. 72, 73 Am. St. Rep. 767.

But it also has been held by this court that, when an opinion, as here, is settled in the bill and made a part of the record, it is properly before us; and, while "it amounts to no judicial finding of fact, and has no judicial effect," yet it "may be looked to to ascertain the judge's reasons for his decision." Bank v. Fox, 44 Utah 323, 140 P. 660. There are instances where a finding may have been influenced or induced by views entertained by the court as to burden of proof.

Here, after proof adduced that the title of the person negotiating the note to the plaintiff was defective, the law cast the burden on the plaintiff to show that he acquired title as a holder in due course. If the court reached the conclusion that the plaintiff was a purchaser in good faith, without notice and for value, because the defendant had not sustained the burden showing the contrary, then would the finding be influenced by an erroneous view of the law, and ought not to stand, unless the evidence, without substantial conflict, supports the finding, in which case it is immaterial what view the court took as to burden of proof. Until the contrary is made to appear, the presumption will be indulged that the court regarded the party as having the burden on whom the law cast it. It, in effect, is claimed that, to overcome the presumption, nothing but the findings can be looked to. They, in some instances, may show how the court regarded the question of burden; in others, not. Here, looking at the findings, there is nothing but the presumption to indicate how the court regarded it. In such case we think the presumption may be met or overcome by looking at anything properly settled in the bill and made a part of the record, and which tends to indicate how the question was regarded and treated. As the opinion is settled in the bill, and thus made a part of the record, we think it may be looked to for that purpose. Whether it is sufficient to overcome the presumption is another thing; since, after the opinion was delivered, and before findings, the case was reopened, reargued, and reconsidered. It, however, is unnecessary to decide that, for the finding that the note was obtained through fraud and by misrepresentations is not assailed, and because the evidence respecting the question of whether the plaintiff was a bond fide purchaser for value without notice is substantially without conflict. Hence whether the plaintiff did or did not acquire title as a holder in due course becomes a question of law, rather than of fact; and, if the undisputed evidence affirmatively shows that the plaintiff acquired title as a holder in due course, he is entitled to prevail, though the court, as to that issue, may have mistaken the law as to burden of proof.

The evidence, without substantial conflict, shows that the plaintiff and the defendant both resided in Salt Lake City. Conrad, an agent of the Aegis Life Ins. Co., sold the defendant 100 shares of the capital stock of that company at twenty-five dollars per share, in consideration of which the defendant, on the 25th day of November, 1912, gave him his promissory note for $ 2,500, payable to Conrad or order at a designated bank in Salt Lake City on or before sixty days after date. The note itself recites that it was given for 100 shares of the capital stock of that company. The plaintiff for some time had been in the business of buying notes. He was not acquainted with either the defendant or Conrad. One Hemple, who was acquainted with both the plaintiff and Conrad, and knowing that the plaintiff was buying notes informed him one evening on the street car that Conrad had the defendant's note, and gave him Conrad's address. Plaintiff, on inquiry at banks, finding that the standing and financial ability of the defendant were good, called on Conrad on the afternoon of a Saturday, the 30th of November, and, as he testified, offered to purchase the note at a ten per cent. discount. Conrad refused to take that, but as the plaintiff testified, offered to sell for $ 2,350. They then reached no agreement and parted, with the understanding that they would meet the next day to further consider the matter. The plaintiff, contemplating he might purchase the note, and not having sufficient funds at the bank with which to pay for it, that afternoon, after he left Conrad, arranged with his bank to borrow $ 1,100 in the event he needed it, upon a note to be signed by himself and his wife, and took with him a blank note to be executed. The note was signed that afternoon, but not delivered. On the next day he again met Conrad, and then agreed to purchase the note for $ 2,300, as testified to by the plaintiff, and not $ 2,100, as deposed by Conrad in his deposition. That day being Sunday, nothing further was done until the next morning, December 2d, at which time they again met at about nine or nine thirty, when Conrad indorsed and delivered the note to the plaintiff. The plaintiff intended giving his check for the full amount of the purchase price, with the request that it be not presented until the next day, because, as then stated by him, he "was a little shy at the bank." But, as Conrad claimed to be in immediate need of money, the plaintiff gave him $ 100 in cash, and one check for $ 200 and one for $ 2,000, with the request that it be not presented until the next day, when sufficient funds would be on deposit to meet it. After the exchange and delivery of the note and checks ...