Nickelson v. Dial

The opinion of the court was delivered by Graves, J.: The assignments of error embrace the exclusion of evidence offered by the plaintiff, improper cross-examination by the defendant, sustaining the demurrer to plaintiff’s evidence, and denying plaintiff’s motion for a new trial. The principal point insisted upon by the plaintiff in his argument is that the words “special agent,” added to the name of the payee of the note, were merely descriptio personse, and therefore the note, by its terms, was owned by A. B. Headington, and the indorsement in his proper name was sufficient. Many cases are cited which support this contention, but in our view this question is not in the case. The plaintiff did not rest upon the prima facie effect of his note, but the payee was placed upon the witness-stand to prove that he owned the note when it was taken. This opened the door to a full inquiry as to whether the payee took the note for himself or for the company. From the evidence of this witness it appears that the note was taken by the payee while acting as the special agent of the Mutual Life Insurance Company of New York, when he was engaged in the -transaction of its business, and in payment of insurance which it was to furnish. It is not shown that he was authorized to sell notes so taken. It further appears that no report was made to the insurance company informing it of such application for insurance and that payment therefor had been made by such note. The maker of the note has not been furnished with any policy of insurance. The payee ceased to be an agent of the insurance company in September, 1904, a few months after the date of the note and several months before it became due. The [13] note may never become due. If the insurance company should ever receive the application for insurance it may decline to issue a policy thereon, in which case the premium will not have to be paid. No consideration whatever has been received by the maker of the note. It seems to us that if the note itself furnished a prima facie case for the plaintiff it has been completely destroyed by the testimony which he presented: The court might well have concluded that when the note was taken it belonged to the insurance company, and that no authority existed for its transfer by the agent, Headington. It is insisted that the plaintiff was erroneously prevented from showing authority on the part of the payee to sell the note by the refusal of the court to permit the witness to state what the rules of the company were in this respect; but this question was objected to on the ground that it was not the best evidence, and, the witness having before stated that whatever authority he had was contained in his contract with the company, we are unable to perceive error in this ruling of the court. The contract was the best evidence. The same rule applies to the offer of proof. It is insisted that the cross-examination made for the purpose of showing that when the note was taken it belonged to the insurance company was erroneous, because it tended to contradict the terms of the note, and because it was immaterial as against an innocent holder. As a general proposition this may be correct, but here it must be remembered that the plaintiff himself raised the question of ownership. He by his testimony made this a material matter outside of the note. Having undertaken for his own purposes to establish the right of the payee to transfer the note, he cannot avoid ordinary cross-examination of the witnesses offered for this purpose. If the plaintiff is not willing [14] to stand upon the terms of the note he cannot expect the defendant to do so. We see no material error in the rulings of the trial court, and therefore the judgment is affirmed.