Voorhees v. Fisher

• Decision Date: 30 August 1893
• Citation: 9 Utah 303,34 P. 64
• Court: Utah Supreme Court
• Parties: JOHN H. VOORHEES, RESPONDENT, v. JENNIE A. FISHER, APPELLANT

34 P. 64

9 Utah 303

JOHN H. VOORHEES, RESPONDENT, v. JENNIE A. FISHER, APPELLANT

Supreme Court of Utah

August 30, 1893

APPEAL from a judgment of the district court of the first district Hon. James A. Miner, judge. The opinion states the facts except that the appeal was taken upon the judgment roll consisting of the complaint, answer, supplemental answer verdict, judgment and bill of exceptions settled January 14 1893, nunc pro tunc as of December 22, 1892.

Affirmed.

Messrs. Dey and Street, and Mr. W. L. Maginnis, for the appellant.

Messrs. Kimball and Allison, for the respondent.

BARTCH, J. ZANE, C. J., and SMITH, J., concurred.

OPINION

BARTCH, J.:

The plaintiff brought this action to recover $ 1,000 and interest, due on a promissory note made payable to the order of Will R. Swan, and signed by the defendant. Swan indorsed the note in blank, and the plaintiff claims he thereafter procured it, for a valuable consideration, before maturity. At the trial the defendant objected to the introduction in evidence of the note, unless the plaintiff would supplement it with evidence that he was an innocent holder for value, etc. The court overruled the objection, and, after plaintiff rested, the defendant offered evidence to prove the allegations contained in her answer and supplemental answer, which allegations are to the effect that at the time of the making of the note there was a mortgage on the property for the purchase money of which this note was made, and of which mortgage the defendant was ignorant; that she was compelled to redeem the property after foreclosure of the mortgage; that thereby the consideration given by Swan had failed; that the plaintiff was not an innocent holder for value; that the note was indorsed by Swan, who delivered the same to the Interstate Land & Town Company without consideration, which company and one A. B. Patton diverted the note from the purpose for which said Swan became an indorser; that the note was fraudulently and wrongfully obtained from said company by said Patton, and in fraud of the rights of said Swan, who fraudulently and unlawfully delivered the same to the plaintiff, etc. The evidence thus offered was objected to, on the ground that it was incompetent, irrelevant, and immaterial, and for the further reason that the evidence of the failure of the consideration, pleaded in the answer, is not competent against the plaintiff, who purchased the note before maturity, the answer setting up no fraud in the making and execution of the note. The objection was sustained, and after argument, and upon motion of counsel, the court instructed the jury to find the issues for the plaintiff. The jury returned a verdict in favor of the plaintiff for the sum of $ 1,215.

Counsel for defendant contend that the rulings of the court were erroneous. This leads to the inquiry as to whether the allegations contained in the answer were sufficient to admit the evidence offered.

The first material allegation is that the "plaintiff is not an innocent holder for value of said note." These words must be taken with reference to their ordinary meaning, and, when so taken, they should give notice of the issue which the plaintiff is called upon to meet. It is a charge of mala fides, and the facts should be distinctly alleged. What issue is the plaintiff to meet? Is it that he is simply a collusive holder, not really interested in the note himself, but only lending his name to Swan to enable him to avoid equities existing between him and the maker, or that he had knowledge of equities existing between the payee and maker of the note before he purchased it, and hence took it subject to those equities, or that he was in collusion with Swan in concealing from defendant the existence of the mortgage which caused the alleged failure of consideration? These are facts, among others, which might be mentioned, any one of which proven would show such a want of good faith that the jury might infer that he was not an innocent holder for value; but how can a court admit evidence to establish facts which do not appear in the pleadings? At most, the allegation referred to is but a naked assertion. The facts which would constitute the plaintiff such a holder ought to have been distinctly pleaded, so as to give him notice as to what he would be called upon to rebut at the trial. The allegation in question failed to do this, and was therefore insufficient. "In pleading, mala fides must be distinctly alleged, and an allegation that the party is not the bona fide holder is not sufficient." Daniel, Neg. Inst. § 770; Uther v. Rich, 10 Adol. & E. 784.

Nor is fraud sufficiently pleaded in the allegation "that said note was fraudulently and wrongfully obtained from said company by said Patton, and in fraud of the rights of said Swan, who fraudulently and unlawfully, as defendant is informed and believes, delivered said note to the plaintiff herein without consideration, and for the sole and only purpose of combining and colluding wrongfully and fraudulently with this plaintiff to cheat and defraud this defendant." This states, in general terms, that the plaintiff was guilty...