Foxman v. . Hanes

Devin, J. There was plenary evidence offered by the defendant that the check upon which this suit is founded was procured by the false and fraudulent representations of the payee of the check, Victor B. Lonson. This evidence was uncontradicted and was not impeached in any way. Indeed, it seems to have been conceded on all sides that the evidence showed that a fraud was perpetrated on the defendant in palming off a comparatively worthless painting for the work of the artist John Constable. Whitehurst v. Ins. Co., 149 N. C., 273, 62 S. E., 1067; Petty v. Ins. Co., 210 N. C., 500, 187 S. E., 816; Cotton Mills v. Mfg. Co., ante, 560. The check was made payable to the order of Victor B. Lonson. On the trial the plaintiff Eoxman offered the check, but there was no evidence of any endorsement of the cheek. Therefore, the plaintiff appeared only as the equitable owner of an unendorsed instrument payable to the order of another person. Under these circumstances plaintiff’s suit to *725 recover on the check was subject to all defenses the defendant would have had against Lonson, the payee. C. S., 3030; Bank v. McEachern, 163 N. C., 333, 79 S. E., 680. Proof of fraud on the part of Lonson, the payee, would defeat recovery by the plaintiff on the unendorsed instrument, notwithstanding he testified he paid Tobachnick full value for the check. It is well settled that where fraud in the execution of a negotiable instrument payable to order has been established, the question of good faith in acquiring the instrument does not arise in a suit thereon by one who has taken the instrument without the endorsement of the payee. C. S., 3010; Bank v. McEachern, supra; Whitman v. York, 192 N. C., 87, 133 S. E., 427; Tyson v. Joyner, 139 N. C., 69, 50 S. E., 803. He holds the instrument subject to any defenses available against the payee. 87 A. L. R., 1183; Steinhilper v. Basnight, 153 N. C., 293, 69 S. E., 220; Critcher v. Ballard, 180 N. C., 111, 104 S. E., 134; Bank v. Yelverton, 185 N. C., 314, 117 S. E., 299; Keith v. Henderson Co., 204 N. C., 21, 167 S. E., 481. The plaintiff chiefly complains that in his cross-examination defendant’s counsel was permitted to elicit the facts relating to his race and place of birth. He contends that under the circumstances, in view of the fact that the defendant was a resident of the county, this examination exceeded the bounds of mere personal identification, that it emphasized unduly these collateral matters, distracted the minds of the jurors, and prejudiced his cause. The right to cross-examine opposing witnesses is regarded in this jurisdiction as a substantial one, Bank v. Motor Co., 216 N. C., 432, 5 S. E. (2d), 318, and for the purpose of impeachment a wide range is permissible, but this must be confined within the bounds of reason. S. v. Dickerson, 189 N. C., 327, 127 S. E., 256. Undue advantage must not be taken of a witness, nor may it be permitted to discredit him by questions tending merely to prejudice him in the eyes of the jury without rational basis as affecting his credibility. S. v. Beal, 199 N. C., 278, 154 S. E., 604. However, it is unnecessary to decide the question here presented, for the reason that the uncontradicted testimony tended to show that the check was procured by fraud, and there was no evidence to show that plaintiff acquired the check by the endorsement of the payee, or any other person, so as to constitute him a holder in due course. These were the determinative issues in the case, and, as to them, there being no contradiction in the evidence, defendant would have been entitled to peremptory instructions to the jury in her favor. This Court will not review a ruling of the court below which the record shows could not have prejudiced the complaining party, even if erroneous. Balk v. *726 Harris, 132 N. C., 10, 43 S. E., 477. “A new trial will not be granted when the action of the trial judge, even if erroneous, could by no possibility injure the appellant.” Rankin v. Oates, 183 N. C., 517, 112 S. E., 32; Bank v. McCullers, 201 N. C., 440, 160 S. E., 494. For the same reason plaintiff’s objection to the opinion evidence of the banking expert becomes immaterial. If it be conceded that plaintiff paid full value for the check upon which he sues, that would not help his case. There was no exception to the judge’s charge. Plaintiff’s motion for new trial for newly discovered evidence is denied. The proposed testimony is cumulative and throws no additional light on the issues in the case. Johnson v. R. R., 163 N. C., 431 (453), 79 S. E., 690. In the trial we find No error.