First National Bank v. Moore

Jenkins, P. J. As set forth in the foregoing statement of facts, the case appeals to have been dealt with by the court and all parties concerned as if the law applicable to the case was that in force prior to the passage of the uniform negotiable-instruments iaw. The special assignments of error all appear to be based upon contentions applicable to the old law. With reference to the contention of counsel for the plaintiff in error, who was the plaintiff in the court below, that the circumstances testified to in the case indicate that the payee of the note was not in fact the lender of the money, but that he was in truth a mere accommodation indorser, it is provided by the negotiable-instruments law that, while every holder is deemed prima facie to be a holder in due course, yet when it is shown that the title of any person who has negotiated the instrument was defective, the burden is then put upon the holder to prove that he, or some other person under whom he holds, acquired the instrument as holder in due course. It would thus seem that the plaintiff, under the present statute, became charged with the duty of showing that he, or some person under whom he held, was a holder in due course, upon its being shown that the payee of the note had negotiated it, whatever might have been the actual relationship existing between the payee and the borrower. But however this might be, there does not appear to be in evidence any fact or circumstance which might tend to indicate that any other person than the payee was the lender of [702] the money. The person who it is contended the facts and circumstances indicate was the real lender did not testify in the case, although the evidence shows that he was president of the plaintiff bank. The most that the circumstances sworn to might indicate is that the money which the payee furnished upon the note was derived' by him from its discount to some other person. The charge of the court does not appear in any wise to warrant the complaint that the court was unfair or unduly emphasized the contentions of the defendant in stating the respective contentions of the parties. The exception to the excerpt in which the court stated that “any circumstance which would place a prudent man upon his guard in purchasing negotiable paper shall be sufficient to constitute notice to the purchaser of such paper before it is due” could not, even if an erroneous statement as to the law actually applicable to the ease, have been harmful to the plaintiff, since, under the rule of law set forth in the first division of the syllabus, it had become incumbent upon the plaintiff to affirmatively establish that it took the instrument without notice of the illegal consideration, or held under some one who thus took it, which proof the plaintiff wholly failed to make. It follows that, the plaintiff having thus wholly failed to carry the burden imposed upon it by law, it could not have been injured by the charge of the court, even if erroneous, dealing with circumstances which might have contradicted its testimony had any such been offered. For the same reason, the charge'of the court in giving to the jury the rule of law governing the illegality of certain contracts based upon illegal and immoral considerations could not have been injurious to the rights of the plaintiff, since the plaintiff stood in the same position as if the note had been executed to it, it having failed to put itself in'the position of a holder in due course. Nor is there any merit in the last assignment of error, excepting to the failure of the court to charge as set forth in the foregoing statement of facts, since the contention of the plaintiff with reference to this excerpt was fully and appropriately covered by other portions of the charge. Judgment affirmed. Stephens and Bell, JJ., concur.