P. P. Mast & Co. v. Matthews

• Decision Date: 08 June 1883
• Citation: P. P. Mast & Co. v. Matthews, 30 Minn. 441, 16 N. W. 155 (Minn. 1883)
• Parties: P. P. Mast & Co. v. James Matthews
• Court: Minnesota Supreme Court

16 N.W. 155

30 Minn. 441

P. P. Mast & Co. v. James Matthews

Supreme Court of Minnesota

June 8, 1883

Appeal by plaintiff (a corporation) from a judgment of the municipal court of Stillwater, where the action was tried by the court.

The instrument in suit, referred to in the opinion, was as follows, viz.:

"$ 35.00. Warren, March 19th, 1878.

"On or before the 1st day of December, 1879, for value received in one Buckeye Drill No. --, I promise to pay S. L. Sheldon or order, thirty-five dollars, at the Lumberman's National Bank, in Stillwater, with interest at the rate of 7 per cent. per annum if paid when due, and 7 per cent. per annum if not paid when due, from date until paid. I also agree to pay reasonable attorney's fees if suit is commenced to collect this note. The express condition of the sale and purchase of said machine is such that the title ownership and right of property does not pass from the said S. L. Sheldon until this note and interest is paid in full. That the said S. L. Sheldon has full power to declare this note due and take possession of said machine at any time he may deem himself insecure, even before the maturity of the note.

"For the purpose of obtaining credit, I certify that I own in my own name 160 acres of land in the town of Warren, county of St. Croix, state of Wis., with 120 acres improved, worth at a fair valuation $ 6,000. It is not incumbered by mortgage or otherwise, except the amount of $ 2,000. I own $ 1,000 worth of personal property over all indebtedness, except the incumbrance on my land if any.

"James Matthews."

Upon this instrument was the following indorsement, viz:

"Stillwater Minn.

"P P. Mast & Co., Springfield, Ohio.

"For and in consideration of one dollar to me in hand paid by P. P. Mast & Co., the receipt of which is hereby acknowledged, I do hereby sell, assign, transfer and set over unto said P. P. Mast & Co. all my right, title and interest in and to the within note, and any and all benefit to be derived therefrom.

"Madison, Wis., July 10th, 1878.

"S. L. Sheldon."

Judgment affirmed.

F. V. Comfort, for appellant.

J. N. & I. W. Castle, for respondent.

OPINION

Berry, J.

This is an action upon an instrument similar in general character to that considered in Third Nat. Bank v. Armstrong, 25 Minn. 530. See, also, Jones v. Radatz, 27 Minn. 240, 6 N.W. 800; Stevens v. Johnson, 28 Minn. 172, 9 N.W. 677. From the reasoning of the court in the first of these cases, it appears that it is not a promissory note, because the sum which it promises to pay is not payable absolutely and at all events. It is made payable to S. L. Sheldon or order, by whom it purports to have been assigned to the plaintiff, by writing indorsed upon it. The assignment is denied in the answer. No evidence having been offered to show that the signature of the indorsed writing was that of Sheldon, the court below, holding that plaintiff, which claims as assignee of Sheldon, had failed to show title to the instrument, dismissed the action.

The burden of proving the signature of the assignment as a part of their case was on the plaintiff, unless it is excused by some provision of statute. It contends that it is excused by Gen. St. 1878, c. 73, § 89, which reads: " In actions brought on promissory notes or bills of exchange by the indorsee, the possession of the note or bill is prima facie evidence that the same was indorsed by the person by whom it purports to be indorsed and every written instrument, purporting to have been signed or executed by any person, shall be proof...