Samuel v. Potter

Hall, J. This was a suit upon a negotiable promissory note executed by the defendants to B. F. Bassett, agent of the estate of R. Long, deceased, and by him, as said agent, endorsed and transferred to the plaintiff. The defendants, in their answer, alleged that they were induced to execute the note in suit by certain false and fraudulent representations made by said Bassett; and that said note was procured by said Bassett by cer [369] tain alleged frauds, and without consideration; and that' plaintiff received the note as collateral security for a preexisting debt, due from said Bassett, with full knowledge of the frauds, and the want of consideration aforesaid, and to assist Bassett in collecting the note. The plaintiff, after introducing the note in evidence, without waiting for any testimony on the part of the defendants, showing that it had been obtained by fraud, introduced his' own testimony tending to show that he was a bona-fide purchaser for value, before maturity, of the note sued on. The defendants introduced testimony tending to show the fraud, and false and fraudulent representations alleged in the answer, and that the note was procured thereby and was without consideration. The defendant, Althouse, testified to statements made by the plaintiff, from which it might have been inferred, as those statements were left unexplained by the plaintiff, that the note was taken by the latter on account of an antecedent debt owed by Bassett to him. Under this state of the evidence the court instructed the jury to find for the plaintiff in the sum claimed by him. In so doing the court erred. The court should have submitted the whole case to the jury by proper instructions. This matter has been fully discussed and determined in Johnson v. McMurry (72 Mo. 280), and Carson v. Porter (22 Mo. App. 184). The jury were the sole judges of the weight of the evidence introduced by the defendants tending to show the fraud and want of consideration alleged in the answer, and also of the plaintiff’s testimony tending to show that he had acquired the note in good faith, for value, and before maturity. As this case will have to be remanded for new trial on account of the error stated, we deem it proper to say that, if the note in suit was taken by the plaintiff in payment of an antecedent debt owed by Bassett to him, and not as a mere collateral security for such debt, the transfer of the note to plaintiff was upon a sufficient [370] consideration. 1 Daniel on Neg. Inst., secs. 826-827, 832, and cases cited. But if the plaintiff took the note merely as a collateral security, giving therefor no other consideration, he holds ifc subject to the equities of the original parties to the note. Goodman v. Simmonds, 19 Mo. 107; Deere v. Marsden, 88 Mo. 514. Judgment reversed and cause remanded. Ellison, J., concurs; Philips, P. J.,.dissents.