Haggard v. Andrew

Waterman, J. Plaintiff seeks to recover on a promissory note executed by defendant. The defenses set up are (1) a general denial; (2) want of consideration, and that plaintiff, who is an indorsee is not a bona, fide holder; and (3) that the execution of the note was procured by fraud. 'The note was payable to the Farmers’ Supply Company, .and was procured from defendant by one J. L. Sutton, who ■claimed to be an agent of the company. Plaintiff claims the fact to be that the note in suit, together with another for an ■equal amount ($125), was given in consideration of the appointment of defendant as an ag’ent of said company, with the right to sell its machinery and supplies within certain territory. Defendant, on the other hand, contends that the Farmers’ Supply «Company is a mythical concern; that he is an ignorant man, unable to read or write; that he did not know he was signing a note when he affixed his signature to this instrument; that he wrote his name at Sutton’s request, merely to aid the latter in finding him again, should he ■desire to secure him as an agent. Upon these issues the case was tried. 1 2 I. - The first ground of complaint is that the court overruled defendant’s challenge to one Johnson, who was called .■as a juror. It is said in the original abstract that, when this challenge was interposed, plaintiff’s peremptory challenges had been exhausted. In an amended abstract appellee denies that the record shows'this fact. If there was no showing in the record that the juror could not have been dismissed peremptorily, the error, if any, in overruling the challenge for cause, was without prejudice. Barnes v. Town of Newton, 46 Iowa, 567; State v. George, 62 Iowa, 682; State v. Brownlee, 84 Iowa, 473. If there is any question as to the record on this matter, and there may, perhaps be, this ruling of the court is sustainable upon another ground. The juror was examined as to his feeling or bias in the case. The challenge was in Jhese words: “The plaintiff challenges the juror for cause.” [420] The challenge was too- indefinite; in not stating the grounds. Davis v. Insurance Co., 96 Iowa, 70; Bonney v. Cocke, 61 Iowa, 303. 3 II. Next, it is said there was error in permitting-defendant to answer, over plaintiff’s objection, this question r “Did you ever get any machinery ?” The argument is that no claim is made that the notes were given for machinery; that they were given to purchase an-agency. Be this as it may, defendant’s claim was-that he never received any consideration whatever, and it certainly could not have prejudiced plaintiff for him to-specify machinery as something he did not get. The supply company pretended to deal in machinery. The agency was-a mere right to buy of it for sale to others, or to have orders, in favor of others accepted and filled by' it. The negative-answer given to this question by defendant tended to show that he had never acted as agent. In either view, we think plaintiff was not improperly harmed by this ruling. 4 III. Over plaintiff’s objection, the trial court permitted defendant to introduce in evidence articles published in the newspapers of Algona, where plaintiff lived and did business, and also current reports, of a general character, which circulated in that community. The tenor of these publications and reports was to the effect that the Danners’ Supply Company was a fictitious concern,, and that the notes taken in its favor were without consideration. We may add that plaintiff was shown to have been a subscriber for the papers in which these articles appeared,, and that these publications were made, and the reports spoken of were current, prior to the time when plaintiff became the owner of the note in suit. It is thought this evidence was inadmissible. Testimony identical in character with this was held proper in Merrill v. Hole, 85 Iowa, 68, where the issue was, as here, whether plaintiff was a good-faith holder of a note sued upon. It is thought by appellant that the facts published and reported were not sufficient, if [421] •considered, to put plaintiff on inquiry. We need only say, without taking time or space to set this evidence out, that "we are of a different opinion. True it is that it is not enough, to prove that plaintiff might have known the infirmity of the paper, if he had exercised ordinary diligence in seeking information. In order to destroy his standing as a bona, fide holder, it must be shown that he did in fact know its character, or willfully refrained from learning when opportunity offered. Lehman v. Press, 106 Iowa, 389, and cases cited. But knowledge may be established by circumstantial evidence, and such was the character of that we are considering. Murray v. Walker, 83 Iowa, 202. Some other rulings on evidence are complained of, but, we think, without just ■ground. IV. Each of the instructions given by the court is challenged. We have read the charge carefully through, and our conclusion is that it fairly states the law applicable to the case. V. Finally, it is said the evidence does not sustain the verdict. We think it does. If the jury believed the testimony offered in defendant’s behalf, it could not have found otherwise than it did. We discern no ground for the claim that the verdict is the result of passion and prejudice. 5 Appellee filed an amended abstract of three pages, and a. supplement thereto of two pages more, and it is asked that the costs thereof be taxed to him. While the denial of appellant’s abstract is not sufficiently specific to require the filing of a transcript by him, this does not make the amended abstract superfluous. The matter contained therein is fairly material. That the supplement was filed after appellant’s argument was made affords no ground Tor this motion. The motion will be overruled, affirmed.