Lebcher v. Lambert

McCarty, District Judge, after stating the facts, delivered the opinion of the court: Appellant relies mainly upon two assignments of error for reversal of the judgment in this ease. The first error alleged is, that the court erred in allowing witnesses for the defendant to testify as to the genuineness of the signature of David Lebcher upon the back of the note in question by comparison with what appellant claims to be the unproven signatures to certain letters purported to have been written and signed by said Lebcher. No objections were made nor exceptions taken [10] to tbe introduction and admission of this evidence. Counsel for appellant having remained silent and permitted tbe testimony complained of to go to tbe jury, waived all objections, if any, that might legally have been interposed to its introduction, therefore this' court will not review tbe same on appeal. Thirkfield v. Cemetery Assn., 12 Utah 76; Elliott on App. Proc., sec. 674, and cases cited. In their second assignment.of error counsel for appellant, relying on the rule of law that possession of a promissory note is prima facie proof of ownership, contend that it was immaterial whether the signature on the back of the note under consideration was written by Lebeher or not. That plaintiff having .proved her possession of the note and non-payment by the defendant, was entitled to a verdict. And that the court erred in refusing to set aside the verdict and grant a new trial. The doctrine is elementary that the title to a promissory note, drawn in the form of the one under consideration, passes by sale and delivery without indorsement, and that the possession of the note so transferred is prima facie proof of ownership, but when so transferred without the indorsement of the payee it does not carry with it any of its otherwise negotiable features and the party purchasing it takes it subject to all equities and defenses, if any, that exist between the original parties to the note. Mr. Norton, in his work on Bills and Notes (3 Ed.), p. 203, lays down the following terse, and, we think, correct rule: “That a transferee of a note made payable to order without indorsement takes it subject to all equities attached to the note; and this although the holder was a bona fide holder for value. The transferee stands in the position of an assignee, he owns the note. He in turn may transfer it, but he owns and transfers it subject to the rules applicable in case of an assignment of any other chose in action. [11] And. although he subsequently obtains the indorsement, if he has in the meantime acquired knowledge of the equities, or if the indorsement be after maturity, he still holds the instrument subject to the same defense.” G. N. Bank v. Bingham, 118 N. Y. 349. The respondent having produced evidence at the trial tending to prove that the indorsement on the nota was not made hy David Lebcher and that the appellant purchased the note, if she' purchased it at all, after maturity, he was entitled to avail himself of and prove any defense that he could have interposed had the action been brought by David Lebcher himself. But, as shown by the record, appellant all the way through the trial of the case persistently contended that she was a bona fide holder in due course before maturity of the note, and that she based her right to recover on that ground, and in pursuance of this contention and objections made by counsel for plaintiff the trial court excluded all evidence offered by defendant tending to prove failure of consideration on the part of David Lebcher — evidence that was both competent and material for that purpose. Randolph on Com. Paper, sec. 565; Hubbard v. Galusha, 23 Wis. 398; Jones v. Buffum, 50 Ill. 277. In order to constitute appellant a bona fide holder in due course of the note in question, both indorsement and delivery of the same before maturity to her by David Lebcher was necessary. Rev. Stat., sec. 1582; 2 Randolph on Com. Paper, secs. 687, 689, 988. The great preponderance of the evidence, as shown by the record, supports the theory and contention of respondent, that the indorsement on the back of the note was not made by David Lebcher, but was a forgery. > The jury no doubt so found, and, we think, rightly. Appellant was, at the time she claims to have purchased the note, the wife of David Lebcher (payee). [12] Sbe made no attempt to collect it until after bis death, and for more than a year after it became due, notwithstanding her husband, from whom she claims to have obtained the note, came to Salt Lake, after its maturity, on business in part connected with the transaction out of which the alleged consideration for the execution of the note arose. And there is evidence, as shown by the record, which, if believed by the jury, was sufficient to support a finding that David Lebcher was the owner of and retained possession of the note after its maturity and after appellant claims to have purchased it, and that appellant was not a bona fide holder before maturity. These issues having been fairly submitted tp the jury their decision is final and this court can not disturb the verdict as there is evidence to support it. Counsel for appellant devote considerable space in their reply brief to the discussion of the proposition that, as a question of law, appellant was entitled to recover because no evidence was introduced to support defendant’s defense of a failure of a consideration for the note on the part of David Lebcher. All evidence on this point having been excluded by the trial court in pursuance of objections made by appellant’s counsel, and their repeated declarations that they relied for recovery on the ground that appellant was a bona fide holder in due course before maturity of the note, that question can not now be considered, because this court will not reverse the case on some point which counsel for appellant in the lower court contended was not an issue, and which that court, in pursuance of such contention, in effect eliminated from the case. Eor this court to permit a party, who has tried his case in the lower court wholly or in part on a certain theory, which theory was acted on by the trial court, to change his position and adopt another and different theory on appeal, would be not only unfair to the trial court, but manifestly unjust to the [13] opposing litigant. And especially would tbis be true where, as in tbe case at bar, respondent insisted in tbe lower court on trying tbe case on tbe theory now contended for in part by appellant, but which, in pursuance of objections made by her, was overruled by tbe court. Elliot on App. Pro., sec. 490, and cases cited. Tbis doctrine is so well settled we deem further citation of authorities unnecessary. Appellant complains of and assigns as error tbe giving of certain instructions by tbe court to tbe jury, and tbe refusal of the court to give certain instructions asked for by appellant, but as no objections were made at tbe time to tbe giving of tbe instructions complained of, and no exceptions taken to tbe court’s refusal to give those asked for by appellant, tbis court will not review tbe same on appeal. We find no reversible error in tbe record. Tbe judgment of tbe trial court is therefore affirmed. Tbe costs of tbis appeal to be «taxed against appellant. Bartch, O. J., and Baslcin, J., concur.