Kirchoff v. Goezlin

Garnett, P. J. In excluding the evidence offered by defendant in one of the cases and in directing the jury to find for the plaintiff in the other, the court seems to have proceeded on the theory that the defendant was not only required to show fraudulent representation at the time he placed his name on the notes or want of consideration, but that he should also have proven that the plaintiff had notice thereof. The innocent maker of a note certainly might show the facts offered in evidence, in defense against an action by an indorsee, and in such a case the burden of proof would shift, and the indorsee would be obliged to prove that he was a Iona fide purchaser for value before maturity. Sperry v. Spaulding, 45 Cal. 544; Hall v. Featherstone, 3 Hurl. & N. 284; Bailey v. Bidwell, 13 M. & W. 73; Wright v. Brosseau, 73 Ill. 381; Harvey v. Towers, 6 Exch. 656; 1 Dan. on Neg. Inst., Sec. 369; Smith v. Braine, 71 E. C. L. 244. The indorser of a note having proved that the note was put into circulation by the maker fraudulently and without his knowledge, the holder must prove he is a holder in good faith and for value. Holme v. Karsper, 5 Binney, 469. “ If the defendant show that there was fraud or illegality in the origin of the bill or note, a new coloring is imparted to the transaction. The plaintiff, if he has become innocently the holder of the paper, is not permitted to suffer; but as the knowledge of the manner in which it came into his hands must rest in his bosom, and the means of showing it must be much easier to him than to the defendant, he is required to give proof that he became possessed of it for a sufficient consideration. If he is innocent, the burden must generally be a light one; and if guilty, it is but a proper shield to one who would be, but for its protection, his victim.” 1 Dan. on Deg. Inst., Sec. 166. Do satisfactory reason can be given why the alleged guarantor in these cases should have such a burden imposed upon him, when the innocent maker of a note would not be likewise embarrassed, if sued by an indorsee. The difference between the maker as defendant, and the guarantor as defendant, is that the former would have to plead want of consideration specially, while the latter might prove that defense under the general issue. Klein v. Currier, 14 Ill. 237. The action of the court in excluding the evidence in the one case, and in directing the jury to find for the plaintiff in the other, was erroneous. The judgment in each case is reversed and the cause remanded. Reversed and remcunded.