Wayland University v. Boorman

LyoN, J. 1. The ground of the demurrer to the complaint seems to have been that it is not alleged therein that the plaintiff, by virtue of its charter, has authority to acquire promissory notes in the course Af business. The same point was raised on the trial by an objection to the admission of any evidence under the complaint, because of such alleged omission. We think the point is not well taken. The complaint avers the authority of the plaintiff “to hold, acquire, and dispose of real and personal property for the uses and purposes of said corporation,” and the statute which confers those powers upon it is properly pleaded. P. & L. Laws of 1855, ch. 28. It is also alleged in the complaint that the payee of the note duly assigned it to the plaintiff “ for the uses and purposes of said plaintiff.” These aver-ments (which are not denied) sufficiently show that the [660] plaintiff was legally competent to take a transfer of tbe note, for tbe note is personal property, witbin the meaning of the plaintiff’s charter. R. S. 1858, cb. 5, sec. 1, subd. 14; R. S., 1141, sec. 4912, subd. 3. We think the complaint states a cause of action. 2. The motion for a nonsuit was properly denied. While, perhaps, it was incumbent upon the plaintiff to prove that it took the assignment or transfer of the note before due and paid a valuable consideration therefor, yet when it produced the note at the trial duly indorsed to it, the plaintiff thereby made prima facie proof of those facts, thus casting upon the defendant the burden of disproving them if he could. 1 Edw. on Bills and Notes, § 371, and cases cited in notes. 3. The testimony offered by the defendant to prove that the note was given upon the parol contemporaneous conditions alleged in the answer was properly rejected. Such evidence is clearly inadmissible under all of the authorities. Hubbard v. Marshall, 50 Wis., 322, and cases cited. The argument of the learned counsel for the defendant was confined to the first of the above points, but the other points are in the case, and we have thought best to pass upon them. By the Oourt.— Judgment affirmed.