Ross v. Webster

ANDREWS, C. J. The defendant has appealed to this court from a judgment of the Superior Court and has assigned various reasons of appeal. An examination of the record shows that none of these can be sustained. The complaint describes two notes, each signed by the defendant and expressed to be for value received. They are averred to belong to the plaintiff and to be due and unpaid. The defense admitted' the execution of the notes, but alleged that they were obtained from the defendant by fraud and conspiracy, and that they were without consideration. The case finds upon this point as follows: — Prior to the 25th of April, 1889, the defendant had been induced by the *66 fraudulent practices of one H. L. Bean, to indorse certain notes, and to accept certain drafts drawn by him on her, for his accommodation, all of which at that date amounted to about the sum of $4,500. To raise the money to meet these obligations Bean induced the defendant to borrow that sum of one Chester C. Munroe, for which she gave her note to Munroe payable in six months from date and secured by a second mortgage on her place situated in the city of Hartford. The money so obtained was used by Bean with the knowledge and by the consent of the defendant to pay said obligations, and the amount was regarded by her as a loan from her to Bean. After that note became due Bean with the knowledge of the defendant solicited the plaintiff to purchase it of Mun-roe. The plaintiff did so, paying full value therefor, and the note and mortgage were assigned to him on the. 7th day of November, 1889. A prior mortgage on the defendant’s place was held by the Society for Savings. On the 2d day of January, 1890, the plaintiff paid to said society $260, interest on said prior mortgage, and also incurred some other expenses about the place to the amount of $10.00. On the 11th day of January, 1890, the defendant gave to the plaintiff in-payment of said sums, her note for the sum of $270, payable to said Bean and by him indorsed. On the 26th day of April, 1890, the plaintiff, at the request of the defendant and of said Bean, surrendered to her said mortgage note for $4,500 and released the mortgage. In consideration therefor the defendant gave to the plaintiff her note for $4,776, that being the amount then due on the $4,500 note. These are the two notes for which this suit is brought. The finding establishes that the defendant received full value for both notes ; that Munroe was a bond fide holder of the $4,500 note while he owned it, and that the plaintiff paid full value for both notes and is the Iona fide holder of them both; that neither the plaintiff nor said Munroe was guilty of, or had any knowledge of, any fraud whatever towards or misrepresentation to the defendant in respect to any of the transactions out of which the notes or either of them arose ; and that no conspiracy to defraud the defendant existed be *67 tween Bean, Munroe and the plaintiff, or any of them, or between any other persons with the knowledge of either the plaintiff or Munroe. The finding does establish that Bean in his dealing with the defendant was guilty of fraud and misrepresentation to her, and that he deceived her for the purpose of obtaining money from her; and that the giving by her to Munroe of the $4,500 note and mortgage was one of the results of his fraudulent course towards her, from which he expected to profit by getting from her for his own use a portion of the avails. It also establishes that, for a long time before the note for $4,776 was given in renewal of the prior note of $4,500, the defendant had full knowledge of the fraud which she claimed had been practiced upon her to procure from her the prior note, and of the conspiracy to defraud her which she claimed had been entered into against her by the plaintiff, Munroe and Bean. And finally, the finding declares that there was no fraud or misrepresentation of any kind attending the giving of the note in suit in renewal of or exchange for the $4,500 note, and that it was given by the defendant with full knowledge of all the facts relied upon by her to establish her defense of fraud, misrepresentation and conspiracy to defraud her. There are six reasons of appeal namely: 1. That upon the defendant’s answer as filed in the Superior Court the burden of proof of establishing the character of said notes was upon the plaintiff and not upon the defendant. 2. That the first or mortgage note having been obtained by the fraud of Bean and purchased by the plaintiff when overdue, was open to all defenses to which it would have been in the hands of Bean. 3. That being fraudulent in its inception it could not have formed a good consideration for a new note without other or further consideration. 4. That the substitution of a new note in place of the former one which was fraudulent, without consideration, is not a waver of the fraud. 5. If the substitute note was given at the earnest solicitation of both Bean and Ross with knowledge of the fraud, the earnest solicitation is itself a fraud which will invalidate the *68 new note. 6. Upon all the facts found by the court the judgment should have been for the defendant. The first reason cannot be sustained: The answer admitted the execution of the notes, but alleged that they were obtained from the defendant by fraud. This was new matter set up affirmatively by way of avoidance. The burden of proving such matter is always on the party alleging it. 1 Greenleaf’s Ev., §24; Gould on Pleading, chap. 6, §70. Besides, fraud is never to be presumed, but must be proved. Huntington v. Clark, 39 Conn., 557; Dwight v. Brown, 9 Conn., 91; Crisp v. Pratt, Cro. Charles, 550; Chancellor of Oxford's Case, 10 Coke, 56. The second, third and fourth reasons cannot be sustained because they assume that the mortgage note given by the defendant to Munroe was tainted with fraud. It is found directly that there was no fraud in this note. Between the defendant and Munroe there was entire bona fides, and the defendant received the full value of the note from Munroe. Bean was not a party to the note, and. although he may have practiced fraud on the defendant that fraud does not affect the note ; nor can it affect the note in suit. The fifth reason sets up not a question of law but a question of fact.' There is no law that makes “earnest solicitation ” a fraud unless there is something else with it. Moss v. Riddle, 5 Cranch, 351. The sixth reason is nothing, and must be disregarded. There is no error in the judgment appealed from. In this opinion the other judges concurred.