Young v. White

• Citation: 18 Mo. 93
• Parties: YOUNG, Respondent, v. WHITE, Appellant.
• Decision Date: 31 March 1853
• Court: United States State Supreme Court of Missouri

18 Mo. 93

YOUNG, Respondent,

v.WHITE, Appellant.

Supreme Court of Missouri.

March Term, 1853.

1. Where the instructions given fairly present the case to the jury, the judgment will not be reversed, although other instructions, in themselves proper, were refused.

Appeal from St. Louis Court of Common Pleas.

Glover & Campbell, for appellant.

N. Holmes, for respondent.

RYLAND, Judge, delivered the opinion of the court.

This was a petition upon a bill of exchange by the payee, White, against the drawer, Young. The protest and notice were admitted by the answer, and the indorsements were proved. The defence was that the bill was drawn without consideration and merely for the accommodation of Young, the payee. The evidence produced by the defendant himself tended to show, that the bill was, in fact, drawn in payment for a quantity of lumber sold and delivered by the plaintiff to the defendant, and it failed to establish the facts set up as a defence, in the defendant's answer. All the evidence offered by the defendant was admitted. The bill had been indorsed several times, and lastly to the original payee, who brought the suit.

The main question as to facts was, whether the bill of exchange sued upon in this case was given and accepted in consideration of the lumber sold by Young to White, or not. The defendant contended, that he had given his notes, payable to Webster & Co., for the amount of the lumber due to Young; that he was to do this by contract with Young when he bought the lumber; that the lumber amounted to $3,978 12; that the notes which he gave to Webster & Co. were for this amount, and were given in payment for this lumber, and that said notes were in discharge of his indebtedness to Young; that Young through fraud, covin and deceit, and by mere practice and contrivance, obtained and procured from defendant, two supposed bills of exchange, of which the one now in suit was one, in order that Young might draw from Webster & Co. the money on the notes which White had given to them for the lumber, when the notes reached maturity, and that these bills of exchange were given for this purpose and for no other consideration or purpose.

The plaintiff contends, that he had nothing to do with the notes given by White to Webster & Co.; that the notes were given to Webster & Co. to secure them as acceptors upon these bills of exchange for White; that the bills were for the lumber and that White to secure Webster & Co., did assign over to them his lease and improvements, and policy of insurance, and gave the notes; that the notes were to secure Webster & Co. for the liability they were under as acceptors of the bills. Webster & Co. failed, and this failure has produced the hardship and difficulty in this transaction, for they passed off a part of these notes and White had to pay them, although they never paid the bills of exchange.

The court gave the following instructions for the plaintiff:

1. The drawing and acceptance and presentment for payment and protest of the bill of exchange sued on, are admitted by the defendant, and the jury is instructed by the court that the said bill of exchange must be presumed to have been drawn by White and accepted by Webster & Co. for a good and valuable consideration, unless the contrary is shown by evidence satisfactory to the jury.

2. If the jury believe from the evidence, that the plaintiff received said bill of exchange sued on, with the other bill that has been satisfied, for the lumber sold by plaintiff to defendant; that the notes and securities given by defendant to Webster & Co. were given by White to secure Webster & Co. as acceptors for White; that the subsequent arrangement was for the settlement and adjustment of the seven months' draft or bill, and was made for the benefit of White, to save him from further loss by the failure of Webster & Co., and that the plaintiff has never received from White any payment or satisfaction of the five months' bill sued on, then the jury is instructed to find a verdict for the plaintiff for the amount of the bill sued on, with damages at four per cent., and interest from maturity, at six per centum per annum.

3. The answer of the defendant is not any evidence of any fact or statement therein, for the defendant; but he is required by law to establish his defense by evidence satisfactory to the jury; nor is the petition evidence in the case for the plaintiff.

4. The bill of exchange sued on is, in law, upon its face, prima facie evidence of the liability of the defendant to pay the plaintiff, as the holder, the amount of said bill and the damages and interest thereon, in default of payment thereof by the acceptor, and due notice of said default to the drawer.

5. The whole burden of proof to avoid this legal liability is upon the defendant.

The court gave the following instructions on its own motion:

10. Fraud is not to be presumed, but must be proved. It may be proved by circumstances or by direct and positive testimony. The burden of proving the alleged fraud in this cause is upon the defendant.

11. The jury will take into consideration all the facts and circumstances connected with the making of the bill of exchange sued on, in order to determine the understanding among the original parties to said bill--that is, whether Young directed White to give his notes for the lumber to Webster, said notes to be in full satisfaction or discharge of the lumber account, and agreed that he (Young) would...