Sioux Nat’l Bank v. Lundberg
| Decision Date | 02 March 1929 |
| Docket Number | 6290 |
| Citation | 54 S.D. 581,223 N.W. 826 |
| Parties | SIOUX NATIONAL BANK OF SIOUX CITY, IOWA, Respondent, v. E. S. LUNDBERG, Appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Union County, SD
#6290—Affirmed
E. E. Wagner, Mitchell, SD
Attorney for Appellant.
Thomas McInerny, Elk Point, SD
Attorney for Respondent.
Opinion Filed Mar 2, 1929
On or about February 5, 1920, defendant executed and delivered to one Williams two certain promissory notes in the following form:
“Feb. 5th, 1920. No. 48091
“[Signed] E. S. Lundberg.
“Alcester, S. D.”
The notes were negotiated to plaintiff before maturity and thereafter and about September 16, 1920, defendant made to plaintiff a partial payment on the $1,250 note and executed as renewal and collateral to the balance thereon his promissory note, payable to plaintiff, dated September 16, 1920, due December 1, 1920, in the sum of $1,000. No further payments were made and plaintiff instituted this action to recover upon the notes. It is undisputed that the notes were procured from defendant by fraud and misrepresentation and without consideration, which facts being made to appear, the real issue between the parties was whether or not the plaintiff acquired such notes as a holder in due course, and the burden in this case was upon the plaintiff to so prove. See Jerke v. Delmont State Bank (No. 5440) on rehearing, 223 N.W. 585.
The case coming on for trial, both parties moved for directed verdict at the close of all the testimony. Thereupon the court discharged the jury, took the matter under advisement, and subsequently made and entered findings of fact and conclusions of law in favor of the plaintiff upon all of the issues, and from a judgment in favor of plaintiff and against the defendant duly entered pursuant to such findings and conclusions, and from an order denying his motion for new trial, defendant has appealed.
Appellant advances three principal contentions upon this appeal, which we will proceed to consider. He maintains, first, that respondent could not be a “due course holder” under the law relating to negotiable instruments because the notes in question executed by appellant and indorsed to respondent are not negotiable in form by reason of the following clause therein contained: “The makers and endorsers of this note hereby severally waive protest, demand, notice of non-payment, and consent to the renewal and extension of this note without notice to us.” On this point the decisions under the Negotiable Instruments Law are not entirely harmonious. The view advanced by appellant is decidedly the minority rule, however, and this court stands committed to the majority rule. Security National Bank v. Gunderson (1927), 216 N.W. 595. The matter was carefully considered in that case, and we believe the correct result was arrived at, and we therefore affirm that holding to the effect that a clause such as is above quoted does not destroy the negotiability of an otherwise negotiable note under the laws of South Dakota.
Appellant further advances the view, in connection with this point, however, that inasmuch as the note was negotiated to respondent in the state of Iowa, its character, as to being negotiable or nonnegotiable, should be determined pursuant to the Iowa law, and that under the Iowa law such clause renders the note non-negotiable. That the state of Iowa, at one time at least, adopted the minority rule on this question, is indicated by the cases of Cedar Rapids National Bank v. Weber, 180 Iowa 966, LRA 1918A, 432, and Quinn v. Bane, 182 Iowa 843, 164 N.W. 788. See criticism of these cases in Brannan’s Negotiable Instruments Law (4th Ed.) pp. 870, 871. We have not searched the subsequent decisions to determine whether or not the Iowa court has continued to maintain the minority view regarding this question because we do not believe it is material in this case. It is the law of this state that the negotiability of a note is determined in the courts of this state, so far as concerns the maker at least, in accordance with the law of the place of payment. Section 876, RC 1919; Barry v. Stover (1906) 129 AmStRep 941. As will be observed, the notes in question in this case were “myself” notes, indorsed by the maker, specifying no place for payment, but giving the address of the maker as Alcester, S.D. By virtue of section 1777, RC 1919 (section 73, NIL), the notes were payable at Alcester, S. D., and their negotiability, at least so far as concerns the maker, is determinable in the courts of this state according to the law of South Dakota.
Appellant’s second principal contention is that the court erred in taking from the jury the question of whether or not respondent became a due course holder of the notes in question, and appellant here seeks to invoke the rule that it was error to take the case from the jury and make findings against him because there was sufficient evidence in the case in his favor upon this issue to have supported the verdict if the jury had found in his favor, and therefore that the question should have been submitted to the jury. This is undoubtedly the general rule by which to test the propriety of the action of a trial judge when he directs a verdict. See Commercial & Savings Bank v. Duitsman (1925) 205 N.W. 379. In the case at bar, however, both parties moved for a directed verdict at the close of all the testimony. It is the settled rule in this state that, “When each party, at the close of all the evidence, presents a motion for direction of a verdict this, in effect, is a submission of questions, both of law and fact, to the court.” Share v. Coats (1912) 137 N.W. 402. See, also, Rice v. Bennett (1912) 137 N.W. 359; Langbehn v. American Insurance Co. (1919) 171 N.W. 820.
When both parties, without specific reservation of the right to go to a jury, move for directed verdict at the close of all the testimony, the trial judge may choose between four possible courses: First, he may deny both motions and submit the case to the jury; second, he may deny the motion of the plaintiff and direct the jury to return a verdict in favor of the defendant; third, he may direct the jury to return a verdict in favor of the plaintiff and deny the motion of the defendant; fourth, he may dismiss the jury, make findings and conclusions as in any court case, and render judgment thereon. In any one of the three latter cases the decision of the questions of fact will be considered as the decision of the court. The parties will be deemed to have consented that the court should decide the questions of fact, as well as the questions of law, and the decision is the decision of the court, regardless of whether the judge adopts the fourth choice and makes explicit findings, or whether he adopts the second or third choice and implicitly determines the facts by directing the jury to return a verdict. The test of the sufficiency of the evidence to support the determination of the trial judge upon the facts is the same if any of the three latter choices be adopted and regardless of whether the determination of facts by the trial judge is explicit in the form of findings or is implicit in the direction of a verdict. The determination of the trial judge as to the facts will be sustained in any of those three situations, unless the clear preponderance of the evidence is against the findings explicitly made or against the fact determinations necessarily implicit in his direction of a verdict.
It is also true, however, that in the case of double motions for a directed verdict, either party can avoid this situation of being deemed to have waived the right to go to a jury, and can preserve that right in the event of an adverse ruling upon his motion for directing a verdict by specifically reserving the right in apt language in his motion or by seasonable and proper request after ruling...
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