Nicholson v. Patton

Rost, J., delivered the opinion of the court. The plaintiff, tutor of certain minors, claims from the defendant, in their behalf, a promissory note of two thousand four hundred dollars, which was lost or mislaid, while in the possession of W. Christy, acting as the plaintiff’s agent. The defendant admits the possession of the note, but avers that he is the lawful proprietor thereof, having purchased and received the same in the regular course of trade, in good faith and for a valuable consideration. The jury gave a verdict against the defendant, and his motion for a new trial being overruled, judgment was rendered, and he appealed. During the trial, a bill of exceptions was taken to the opinion of the court, admitting W. Christy as witness, on the ground, that he was the depositary of the note, and was responsible for the act of Finney, his clerk, who had purloined said note as stated by W. Christy, on his voir dire. The question, how far an agent can be a witness in matters connected with his agency, and involving his responsibility, [216] has repeatedly been submitted to the decision of this court, and the rule settled by their decision and recognized by the courts of the other states, appears to be, that an agent can be a witness in all cases except in such as are brought against the principal, on account of the negligence of the agent; in all such cases, he cannot be a witness for the principal. Practical 'Jlbridgment of Common Law Cases, vol. 8, page 432. The present action does not come within that exception ; and (be fact to be proved is one, for the proof of which, from the necessity of the case, the law is satisfied with an inferior degree of evidence. An agent is a competent witness for his principal in all cases, except where suit is brought against the principal, on account of the negligence of the agent. So, in an action for the recovery of a lost note against a broker, who bought it of a notary’s clerk, the notary was received as a competent witness, to prove that his clerk had purloined the note from his office, and sold it to the defendant, notwithstanding he was the agent employed to protest it. In an action for the recovery of a lost note, when the fact of the loss is proved, the defendant must show that he came in possession of it m the regular course of trade, and that he acquired it in good faith, and for a valuable consideration. When a note is taken by a broker, under circumstances affording reasonable ground of suspicion, he should inquire if the party came bjr ¡t honestly, ?nd if,lie l;*kes circumstances, ^profit,e!t is at lus own re- [216] Articles 2258 and 2259 of the Louisiana Code, provides, that the loss of written instruments containing obligations may be proved by such circumstances, supported by the oath of the party, as renders the loss probable, provided it has been advertised within a reasonable time. In this case the advertisement is shown. The defendant admits that the note exists in his possession, and if under these circumstances, the oath of the owner would be legal evidence of the loss, we do not see upon what grounds that of his agent could be excluded. We are, therefore, of opinion, that the testimony was properly admitted. The introduction of a letter of Finney as evidence, was also excepted to by the defendant. We deem it unnecessary to notice it; the letter only went to show the manner in which the note was lost, and how it came in the possession of the defendant. Those facts do not appear to us material to the issue. The fact of the loss being proved, the defendant must show that he came in possession of the note in the regular course .of trade, and that he acquired it in good faith and for a valuable consideration; for we take the rule as settled in England, in the case of Gill vs. Cubitt et al. for our guide; when a note is taken by a broker, under circumstances affording reasonable grounds of suspicion, questions must be asked and inquiries made, whether the party from whom it is received, came by it honestly or not, and if the broker takes it under those circumstances, with a view to profits arising from inte [217] rest or commission, or merely because the names upon it or some of them are good, then he takes it at his risk, or what ought in the contemplation of a reasonable man to be a risk, whether it be stolen or not, he takes it at his peril. In that ’ . * ■ case, one of the judges said, after commenting upon the evidence, “ I think those circumstances tend strongly to show that the party who discounted the bill, did not choose to make inquiry; but supposing the questions might not be satisfactorily answered, rather than refuse to take the bill, took the risk, in order to get the profit arising from commission and interest.” 3 Barnewall and Cresswell's Reports, 466. In the present case, Finney was, to the knowledge of the defendant, a notary’s clerk, without any apparent means. The note was one given in pursuance of an act passed before his employer, and was signed by him ne varietur. Both drawer and endorser were men with whom Finney was not known to be in the habit of dealing, and it was taken by the defendant without asking any questions. A broker testifies that it is not usual to tisk questions on those occasions, but that under the peculiar circumstances of this case, if the note had been offered to him, he would have ascertained how Finney came by it, before discounting it. Another broker testifies, that he refused some time before to take a note of the same kind offered him by Finney. The defendant told one of the witnesses, shortly after the disappearance of Fin-ney, that he had taken the ■ note from him on pledge, for a loan of twelve hundred dollars, which the borrower had promised to refund in a few days, when the note was to have been returned to him. Pickrell, the clerk of the defendant, swears that the defendant gave Finney a check for twelve hundred dollars, and placed the note in his strong box; that witness being the book-keeper of the defendant, asked what he was to do with the note, when the defendant replied, that he had given Finney twelve hundred dollars, and there was the note in the box. That the note thus remained without being entered in the books of the defendant as his own, up to the time of the departure of the witness for the north. It is proved on the part of the defendant, that Christy had, [218] at various times, endorsed notes of small amounts for Finney, which had been discounted in the market, and it is shown that he was his confidential' clerk. Brokers testify, that it frequently occurs, that only part of the proceeds of notes discounted are paid the first day, and that the calculation of interest and of the balance due, are left for further settlement ; those transactions are not generally entered upon the books until théir termination. We do not think that these circumstances tended materially to diminish the grounds of suspicion which the peculiar situation of Finney and the nature of the paper he offered were calculated to inspire, nor does it affect the declaration of the defendant that he took the note in pledge. We are of opinion, that the judgment of the District Court ought to be affirmed. It is, -therefore, ordered, adjudged and decreed, that the judgment of the District Court be affirmed, with costs.