Moore v. First Nat. Bank of Iowa City
| Decision Date | 09 January 1912 |
| Citation | 121 P. 626,30 Okla. 623,1912 OK 52 |
| Parties | MOORE v. FIRST NAT. BANK OF IOWA CITY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In an action by the indorsee of a bill of exchange against the drawee and acceptor thereof, brought in the courts of the Indian Territory, it was not necessary to allege notice of presentation and dishonor, and a complaint which did not contain such allegations was not thereby subject to demurrer.
The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith.
The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it.
Where the only testimony upon a material issue is that of an interested party and such testimony is inconsistent or contradictory and the replies to questions are evasive and unreasonable, and where the jury may draw inferences therefrom unfavorable to plaintiff or defendant, as the case may be, the court should never direct a verdict but should submit to the jury all controverted questions of fact under proper instructions.
The credibility of a witness and the effect and weight to be given to inconsistent or contradictory testimony are questions of fact to be determined by the triers of fact whether court or jury, and not a question of law for the court. It is peculiarly within their province to weigh the testimony of the witnesses, as well as all the facts and circumstances tending to corroborate or discredit them, and determine the case according to the preponderance of the evidence.
Commissioners' Opinion, Division No 1. Error from Bryan County Court; Chas A. Phillips, Judge.
Action by the First National Bank of Iowa City against A. W. Moore. From a judgment for plaintiff, defendant brings error. Reversed.
H. H. Loden, for plaintiff in error.
Crook & Kyle and Porter Newman, for defendant in error.
The defendant in error, plaintiff below, is hereinafter referred to as plaintiff; the plaintiff in error, defendant below, as defendant; and the Rhode Island Manufacturing Company, as the Rhode Island Company.
It was not necessary to allege or prove that the several bills of exchange were protested for nonpayment. These bills of exchange were drawn on and accepted by the defendant, who, if bound at all, was primarily liable; hence no notice of presentation and dishonor was necessary. Daniel on Negotiable Instruments, art. 995; 7 Cyc. 1053. The maker or acceptor of bills of exchange is liable everywhere and at all times, within the statute of limitations, and, as against him, the bringing of the action is a sufficient demand. Norton on Bills and Notes, art. 345.
At the conclusion of the testimony, the court peremptorily instructed the jury to return a verdict for the plaintiff. Was this error? On the trial of the case, the plaintiff put in evidence the 12 bills of exchange and the depositions of its cashier and the manager of the Rhode Island Company, the payee and indorser of the bills of exchange. Thereupon the defendant introduced his testimony tending to establish that the bills of exchange were obtained by means of false and fraudulent representations practiced upon him by the agent and salesman of the payee. This testimony was not denied. Defendant then offered in evidence a second deposition of Lovel Swisher, cashier of plaintiff bank. We have read the deposition with care. It appears that the witness either failed or refused to produce the records of the bank, though subp naed so to do; refused to furnish a list or schedule of the names of parties whose notes the bank took at the time that the Moore collateral was delivered; and refused to state in what amount, if any, the Rhode Island Company was indebted to the bank. To numerous questions the witness refused to answer; to others he replied that he had already answered; that he did not have to answer; to others he made no response, or gave evasive answers; to others that he was unable to testify without the bank books, but made no effort to get them; declined to give any information as to how many notes of the Rhode Island Company the bank at the time held; refused to examine the records of the bank and furnish counsel with information concerning the renewal of notes given by the Rhode Island Company. As to who was paying the costs of furnishing cost-bond and employing counsel, the witness either refused to answer or made evasive replies. At the time of the last renewal of the note given by the Rhode Island Company, the witness testified that all Moore's notes were past due and uncollectible, but refused to say whether or not the bills of exchange had been delivered back to the Rhode Island Company; stated that he had no correspondence with defendant and was not positive that he had sent notices to him at the maturity of the drafts, and did not know that any payments had been made thereon, and refused to answer numerous questions touching the bona fides of the bank's transactions with the Rhode Island Company, to which the Moore acceptances were collateral.
Plaintiff's possession of the acceptances, indorsed to it, was prima facie evidence that the same had been acquired in good faith, for value, in the usual course of business, and before maturity. When the defendant introduced evidence tending to show that the bills of exchange had been obtained from him by means of fraud, perpetrated by the agent of the payee, the onus then shifted to the bank to show that it had acquired them in good faith, for value, in the usual course of business, and before maturity. Forbes v. First National Bank, 21 Okl. 206, 95 P. 785.
The question presented to the trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may reasonably be drawn therefrom, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the plaintiff against whom the motion is leveled. Solts v. Southwestern Cotton Oil Co., 28 Okl. 706, 115 P. 776; Frick v. Reynolds et al., 6 Okl 640, 52 P. 391; Richardson et al. v. Fellner et al., 9 Okl. 513, 60 P. 270; McGuire v. Blount, 199 U.S. 142, 26 S.Ct. 1, 50 L.Ed. 125; Marshall v. Hubbard, 117 U.S. 415, 6 S.Ct. 806, 29 L.Ed. 919; Nutt, Executor, v. Minor, 18 How. 287, 15 L.Ed. 378; People v. People's Insurance Co., 126 Ill. 466, 18 N.E. 774, 2 L. R. A. 340; Pullman's Palace Car Co. v. Laack, 143 Ill. 242, 32 N.E. 285, 18 L. R. A. 215.
The court may direct a verdict for plaintiff or defendant, as the one or the other may be proper, only where the evidence is undisputed or is of such conclusive character that the court, in the exercise of a sound judicial discretion, would be compelled to set aside a verdict in opposition to it. Neely v. Southwestern Cotton Seed Oil Co., 13 Okl. 356, 75 P. 537, 64 L. R. A. 145; Union Pacific R. R. Co. v. McDonald, 156 U.S. 276, 14 S.Ct. 619, 38 L.Ed. 435; Elliott v. Chicago, etc., Ry. Co., 150 U.S. 245, 14 S.Ct. 85, 37 L.Ed. 1068; Delaware, etc., Ry. Co. v. Converse, 139 U.S. 469, 11 S.Ct. 569, 35 L.Ed. 213; Ph nix Life Insurance Co. v. Doster, 106 U.S. 35, 1 S.Ct. 18, 27 L.Ed. 65; Connecticut Mutual Life Insurance Co. v. Lathrop, 111 U.S. 612, 4 S.Ct. 533, 28 L.Ed. 536. Measured by the foregoing rule, it was error for the trial court to direct a verdict for plaintiff.
The testimony of Swisher and Duley, as given in the first depositions without other evidence, would doubtless have been sufficient to have entitled plaintiff to a verdict; hence the necessity of the second deposition, as tending to refute the evidence originally given and to show, as a matter of fact that plaintiff was not the bona fide holder of the acceptances, or, if so, that the principal debt had been discharged. In such cases, it often occurs that the only evidence obtainable on the part of the...
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