Mulberger v. Morgan

• Decision Date: 16 November 1898
• Citation: 47 S.W. 738
• Parties: MULBERGER v. MORGAN et al.
• Court: Texas Court of Appeals

47 S.W. 738

MULBERGER v. MORGAN et al.

Court of Civil Appeals of Texas.

November 16, 1898.

Supplemental opinion. For former opinion, see 47 S. W. 379.

KEY, J.

In order that no misunderstanding may arise, we add to our former opinion, filed October 12, 1898, the following:

The answer of the defendants embraced two distinct defenses, to wit: (1) Failure of consideration, by reason of the fact that the horse in payment for which the notes were given, though warranted to be sound, was diseased and worthless; and (2) fraud on the part of the original payees in obtaining possession of the notes, without the consent of the defendants. It is on the first of these issues that we hold the court below erred in reference to the burden of proof. When an assignee of a negotiable instrument sues to recover upon such instrument, acquired before maturity, and the defense is failure of consideration between the maker and the original payee, the burden of proof rests upon the maker to show that no value was paid by such assignee. Herman v. Gunter, 83 Tex. 68, 18 S. W. 428. It is held, however, that when possession of the negotiable instrument is obtained by a fraud, or it is fraudulently put in circulation, the burden rests upon the holder to show that he paid a valuable consideration for it, etc. Hart v. West, 91 Tex. 184, 42 S. W. 544. On this latter point our former opinion is not as clear as it should have been, and for this reason this supplemental opinion is filed.