Rice v. Rankans

Montgomery, J. The plaintiff claims to be the Iona fide purchaser of certain written instruments, reading as follows: — 383 — “$960.00. First Mortgage Bond. No. 710. “Chicago, August 16, A. D. 1888. “ On the 16th day of August, A. D. 1893, for value received, I promise to pay to the order of Niels C. Fredericksen the principal sum of $960, with interest thereon at the rate of 7 per cent, per annum, payable annually, according to the tenor and effect hereof, and of five coupons hereto attached. Both principal and interest are payable at the office of Fredericksen & Co., Chicago, Illinois. If any part of the principal or interest remains unpaid at maturity, it shall bear interest thereafter at the rate of 10 per cent, per annum, payable semi-annually; and if any interest remains unpaid 20 days after due the principal shall become due and collectible at once, without notice, at the option of the holder. If suit is brought to collect principal or interest, I agree to pay attorney’s fees. Principal and interest are secured by a mortgage deed, which constitutes the first lien on real estate in Nobles county, Minnesota. “G-. Rankans.” Attached to this statement were five coupons, reading as follows: — 384 — “$67.20. Chicago, August 16, 1888. “Due to the order of Mels C. Fredericksen $67.20 on the 16th day of August, A. D. 1890, without grace, payable at the office of Fredericksen & Co., Chicago, Ill., with interest at the rate of 10 per cent, per annum after maturity; this coupon note being for the interest due that day upon my note No. 710, of this date, for the payment to the order of said Niels C. Fredericksen of $960.00. “G-. Rankans.” The other coupons were of similar import, payable at different dates, and the instruments were indorsed by the payee named. The declaration alleges that these instruments were made and delivered in the state of Illinois, and that they constitute, under the law of that state, negotiable promissory notes; the plaintiff alleging that he bought the same for value, before maturity. The defense denied — First, that the instruments in question were negotiable under the law of this State; second, that they were negotiable under the law of Illinois; and defendant offered testimony tending to show that the notes were given without consideration, and were procured by the payee named by fraud, and, having made this proof, contends that error was committed on the trial in excluding certain examination of the plaintiff, and in the instruction given to the jury as to the necessity of proof of fraud. Certain questions were asked on the cross-examination of the plaintiff as to whether he pursued the mortgage on. the land in Minnesota. The questions were excluded. He was also asked whether he did not have a large quantity of this paper of the same kind, — some $90,000 worth,— which he sold for $3,000. This was at that stage of the case excluded, and an exception taken. While it may have been proper to receive this testimony upon cross-examination, there was no error to the prejudice of the defendant, for, when the witness was called in rebuttal, — 385 — the same questions were put, and the answers which counsel for defendant, in their brief, indicate that they desired to elicit, were drawn from the witness. It is next urged that the court erred in instructing the jury as follows: “Now, the defendant claims that there was fraud on the part of this plaintiff in obtaining this paper. The rule of law on this point is that fraud will not be presumed on slight circumstances, but must be clearly proved. Circumstances or mere suspicions are not enough to warrant the conclusion of fraud, and the burden of proving fraud is upon him who complains of it.” It is true, as claimed by defendant’s counsel, that this instruction, standing alone, might have left the jury with the impression that the burden of proof was upon the defendant to show the want of good faith on the part of the plaintiff, which, where fraud is shown in the inception of the contract,. is not a correct statement of the law. See Conley v. Winsor, 41 Mich. 255, 256; Mace v. Kennedy, 68 Id. 398; Little v. Mills, 98 Id. 424. But we think, under the circumstances of this case, it is unnecessary to determine whether the other portions of the charge — which were very full upon this subject, and very clearly stated that the burden of proof did shift to the plaintiff after the defendant had shown fraud in the inception of the notes — operated to cure the error in the instruction quoted, for a very careful examination of the record discloses that there was no evidence tending to show that the plaintiff was guilty of any fraud. It is true, the circuit judge submitted the question to the jury as to whether the plaintiff bought the notes Iona fide, but we have searched the record in vain for any evidence contradictory to his statements that he bought the notes in the regular course of business, and paid 85 cents on the dollar for them. Whatever circumstances there may have been in the case, which, — 386 — the defendant might contend, tend to show some notice or knowledge on the jtart of the plaintiff, there were none which connected him with any fraudulent transaction] and we think that under these circumstances the defendant is not in position to complain of the instruction, inasmuch as the correct rule for the necessity for showing good faith, and want of notice of any imperfection in the paper, was so clearly given to the jury. It is next contended that the court erred -in receiving the evidence offered to prove the negotiability of the instruments. The proofs offered were the statutes and reports of the courts of the state of Illinois. These statutes and reports were admissible under How. Stat. §§ 7508, 7509. It is also contended that the circuit judge erred in instructing the jury that the instruments in question were negotiable. The proofs offered to show the negotiable character of the notes consisted of the statutes and reports of Illinois. The cases offered in evidence (Lauferty v. Johnson, 17 Ill. App. 549, and Jones v. Hubbard, 17 Id. 564, and Wolff v. Dorsey, 38 Id., at page 303, and a case of the same entitling in the same volume at page 305), we think, fully establish that the note is, according to the law of Illinois, negotiable. See, also, Chicago Railway Equipment Co. v. Merchants’ Bank, 136 U. S. 268. And, in view of the fact that the testimony was documentary, it was quite proper that the circuit judge should construe it, and instruct the jury as to its effect. It was not contradicted, and there was no duty of weighing the evidence to be performed. Under such circumstances, where the facts are undisputed, it is proper for the court to state the effect of testimony to the jury. We do not overlook the fact that the declaration alleged that the notes were negotiable by the common law of the — 387 — state of Illinois, and it is claimed that the statute was, to some extent, relied upon. But this specific objection was mot made at the time the testimony was offered, and as the defect, if any, could have been easily cured by amendment, the objection cannot avail. We are satisfied that no error was committed, to • the prejudice of the defendant. The judgment will be affirmed, with costs. Long, Grant, and Hooker, JJ., concurred. Mc-Grath, C. J., did not sit.