Marshak v. Fontana

De Graff, J. Plaintiff seeks to recover from defendant on a bank check in the sum of $460 whiek represented the balance due. on a carload of pears purchased by the defendant from the plaintiff. A counterclaim was filed by the defendant alleging that plaintiff orally warranted and represented that said carload of pears was sound and not decayed and were fit for human consumption and that said pears would keep for more than 15 days after the date of purchase. The pleaded facts were sufficiently traversed and damages were alleged in the sum of $800. On these issues the case was submitted to the jury and a verdict in the sum of $463.08 was returned in favor of the plaintiff. Appellant contends that the court erred in holding as a matter of law that the plaintiff was the owner of the check in suit. There is no merit in this contention. Plaintiff is the payee and the production of the paper by him is sufficient evidence of title to establish a prima-facie case. American Exp. Co. v. Peoples Sav. Bank, 192 Iowa 366. The presumptive evidence of plaintiff’s ownership and his right to sue thereon was in no manner rebutted by the defendant. Bigelow v. Burnham, 90 Iowa 300. In fact defendant pleaded and admitted the execution and delivery of the check to the plaintiff. Appellant also complains that the court erred in permitting a recovery of protest fees on the theory that no proof was adduced that plaintiff ever paid said fees or that the check in suit was ever protested. The check was an inland or domestic bill of exchange and protest thereof Section in case of dishonor is unnecessary. 3060-a 152 Supp. Code. 1913. However, when the instant check was presented to the bank, payment was refused and it was duly protested for nonpayment. The certificate of the notary in due form was attached which is prima-facie evidence of the recitals contained therein. Section 4624 Code 1897. The check was sufficiently identified and under the specific objections made by the defendant at the time of the introduction of the check and notarial certificate the trial court properly admitted same. The material facts in issue in this case were in dispute and the verdict of the jury is conclusive on these matters. The [513] evidence sustains the verdict. The instructions given by the court are in harmony with the issues' joined and the evidence offered in support thereof. We discover no reason for granting a new trial. Wherefore the judgment entered by the trial court is — Affirmed. Stevens, C. J., Weaver and Preston, JJ., concur.