Park v. Exum

• Court: North Carolina Supreme Court
• Writing for the Court: HOKE
• Citation: Park v. Exum, 156 N.C. 228, 72 S.E. 309 (N.C. 1911)
• Decision Date: 11 October 1911
• Parties: PARK v. EXUM et al.

72 S.E. 309

156 N.C. 228

PARK

v.EXUM et al.

Supreme Court of North Carolina.

Oct. 11, 1911.

1. Bills and Notes (§ 327^*) —Bona Fide Purchaser—Holder in Due Course.

To make one a holder in due course of a negotiable instrument, under the negotiable instruments act (Revisal 1905, § 2208), the instrument must be regular on its face, and the holder must have acquired title in good faith, and for value before maturity, and without knowledge of fraud or other impeaching circumstances.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 792; Dec. Dig. § 327.*]

2. Bills and Notes (§ 496*) — Negotiable Instruments—Holder in Due Course.

Except in case of instruments payable to bearer, to make one a holder in due course of a negotiable instrument, the burden is upon him to prove indorsement to him, if it be denied.

[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. 1669-1674; Dec. Dig. § 496.*]

3. Trial (§ 140*)—Province of Jury—Credibility.

When proof is required to establish an issue, the credibility of the evidence is for the jury, and not for the court.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 334, 335; Dec. Dig. § 140.*]

4. Trial (§ 29*)—Remarks of Judge.

Where the question was in issue, in an indorsees action on a negotiable note, whether the note was indorsed to plaintiff, and whether he was the holder in due course, it was error for the judge to remark, in the jury's hearing, that he would not allow a verdict for defendant to stand.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 80-84; Dec. Dig. § 29.*]

Appeal from Superior Court, Lenoir County; Justice, Judge.

Action by Howard C. Park against W. P. Exum, Jr., and others. From a judgment for plaintiff, defendants appeal. Reversed, and new trial ordered.

Plaintiff sued, claiming to be indorsee for value and holder in due course of a negotiable note for $500, given by defendants to McLaughlin Bros. in part obligation for purchase price of a stallion. The deposition of plaintiff was introduced, containing full and direct statement that plaintiff bought the note for full value, and same was duly indorsed to him by the payees before maturity, and without notice of any fraud or other infirmity affecting its validity. The indorsement was denied in the pleadings, and there were also allegations, on the part of defendants, to the effect that there was a breach of warranty on the part of McLaughlin Bros, in the sale; and, further, that the sale was procured by false and fraudulent representations on the part of the said vendors, to defendants' damage. The jury having been impaneled and evidence offered, at the close of the testimony, the court intimated that he would charge the jury that if they found the facts to be as testified in the deposition the plaintiff could recover, to which defendants then and there excepted. Counsel for defendants then stated to the court "that they took the position that there was sufficient evidence to be found in the testimony to go to the jury on the question as to whether the jury believed the evidence of the plaintiff in the action. The court stated he would not allow a verdict to stand in favor of the defendants, " this statement being made in the hearing of the jury, and defendants excepted. There was verdict for plaintiff for full amount of the note and interest, judgment according to verdict, and defendants excepted and appealed, alleging errors.

G. V. Cowper and T. C. Wooten, for appellants.

McLean, Varser & McLean and Loftin & Dawson, for appellee.

HOKE, J. (after stating the facts as above). [1-3] Our statute on negotiable instruments (Revisal 1905, § 2208), as applied and construed in several recent decisions of the court, is to the effect that, in order to establish the position of bolder in due course, when required to shut off counterclaims and defenses otherwise available, it must be shown that the instrument is complete and regular on its face, and that title thereto was acquired in good faith, and for value before maturity, and without knowledge or notice of fraud or other impeaching circumstance; and, except in case of instruments payable to bearer, when the indorsement is denied, the same must be proved. Myers v. Petty, 153 N. C. 462, 69 S. E. 417; Mayers v. McRimmon, 140 N. C. 640, 53 S. E. 447, 111 Am. St. Rep. 879; Tyson v. Joyner, 139 N. C. 69, 51 S. E. 803. In the present case there was allegation, with evidence on the part of defendants, tending to show that there was a breach of warranty, in the sale on the part of these vendors. On a perusal of the entire testimony, we think there was evidence, tending to show fraud and deceit on their part, inducing the sale and causing damage, under the principles stated in Myers v. Petty, supra; Whitehurst v. Insurance Company, 149 N. C. 273, 62 S. B. 1067; May v. Loomis, 140 N. C. 350, 52 S. E. 728, and cases of like import. The instrument, too, was payable to order, and the indorsement was denied in the pleadings, thus putting on plaintiff, in order to shut off the defenses arising on the testimony, the burden of showing that the instrument had been indorsed, and that he was otherwise a holder in due course. True the deposition of plaintiff, introduced on the trial, contains full and direct statement tending to show that plaintiff was indorsee for value, before maturity, and in all respects a holder of the note in due course,...