Cook v. Tannery

Opinion by LOGSDON, C. There is only on^ question to be determined in. order to dispose of this case, .and 'that is, Was plaintiff a holder of the note in due course, for value and before maturity? The burden of proof rested on defendant upon this issue. Comp. Stat. 1921, section 7715. To sustain this burden defendant testified on direct examination: “Q. Do you know whether or not Tannery had any knowledge of the transaction involving the transaction of this note prior to the time he purchased the note? A. I don’t know; I believe he did. I know that Scott told me. * * * Q. You know any other facts in reference to thel purchase of this note from Fordyce to (by) Tannery? A. Only what was said to me. Q Who said it? A. Scott. Q. Was Tannery present? A. No. Q. Did you ever have any conversation with Fordyce prior to the purchase of this note (by Tannery) in which you discussed this deal, in which Tannery wins present? Q. No, I didn’t Tannery told me he contemplated buying it. Q. When was that? A. That was on the 9th of Aurvusit, I think. Q. Ho told von m->. that date he ^ontempTaterl buying it? A. He asked me if I couM taire it up, and I told him met at that time. I nskeu that the note be extended, first for 30 days, and then asked for 10 days’ additional time. He and Fordyce and Scott all three’ came to my office and I told them I couldn’t give but $25 that day.” (C.-M. pp. 51, 52.) This is all of the testimony introduced or offered by defendant to overcome the statutory presumption that plaintiff is a holder in due course. It is wholly insufficient for this purpose. The credit for $25 shown on the note’ bears date of August 16, and defendant elsewhere in his testimony stated that the payment- was made on that datd. No issue of fact was presented by this testimony, as it does not conflict with the prima facie case made out by plaintiff when he introduced the note in evidence. But in addition to his prima facie ease plaintiff testified positively to the purchase of the note for value, before maturity, and without notice of any defense. TMs justified, the tirial court in sustaining the motion for directed verdict. The judgment of the trial court should be in all things affirmed. Plaintiff has fil^d in this court his motion for judgment on the supersedeas bond, and under Bule 11 (87 Okla. xx) of this court said motion should be sustained. The judgment of the trial court was entered January 24, 1922, and was for $135 principal, $5.60 interest, $16 attorney’s fees, and costs taxed at $22.30, making a total of $178.90. It is therefore ordered, adjudged, and decreed by this court that plaintiff, Stile.s S. Tannery, do have and recover of and from John P. Cook and Fred Martin, sureties on the supersedeas bond filed' herein, judgment in the sum of $178.90, together with interest on $140.60 thereof at the rate of 8 per centum per annum from January 24, 1922, and for all costs in this court. Journal entry of such judgment may be prepared in conformity herewith. By the Oourt: It is so ordered.