Totten v. Bucy

Alvey, J., delivered the opinion of the Court. This action is brought upon a promissory note for $180, •dated October 10, 1879, payable six months after date, to H. K. White & Co., or bearer. By the terms of the note, it was made payable at the- First National Bank of Cumberland. ' • . The plaintiff claims to have acquired title to the note for valuable consideration, before its maturity; and the defendant pleads and insists that the note was obtained from him by the.fraud and deceit of the payees named in the note, through their agent; and that the plaintiff took the note with full knowledge of the facts under which the same was procured from him, the defendant.

And, at the trial below, under the instructions of the Court, the jury appear to have so found. ■ It appears from the record, that the note was given for the deferred payment on a certain number of washing ⁴⁴⁹ machines, that were to he furnished to the defendant, at a certain price, to he disposed of by him as agent of the payees of the note. According to the evidence on the part of the defendant, which was not controverted at the trial, only a small portion of the machines were furnished, and they were found to he utterly worthless, and could not he disposed of: That the whole transaction, according to the testimony of the defendant, upon which the note was obtained, was a fraud and a deception, practiced by the agent of the payees of the note upon the defendant ; and that similar frauds were practiced upon others, to whom sales of the machines were made, by the same agent. The terms of the arrangement were reduced to writing at the time, and executed in duplicate form, each party retaining one of the duplicate originals thus executed. This contract, while it prescribed the number and price of the machines to he furnished, and the terms upon which they were to be supplied to the defendant as agent for sale, contained no stipulation in reference to the making of a negotiable promissory note for the deferred payment on the machines, before they were received by the defendant.

It simply stipulated that for the five dozen machines to he furnished at $5 each, the defendant should pay $30 on each dozen ordered, as they toere sold, and the balance of $180 was to be paid in six months. The defendant, however, in his testimony, states that the party acting for the payees of the note, suggested and urged certain reasons why a note should he given for this $180, and that it would he placed in the bank where payable, “and .that the money realized from the sales of the machines could be applied to the payment; but that he, (the defendant,) had better not move around much for a few days, until he had thoroughly tested the machines.” That the agent left one dozen of the machines, and they were thoroughly tested, and found to he entirely worthless, and none of them could he disposed of, though efforts ⁴⁵⁰ were made to sell them. It appears that the note in question, instead of being placed at the bank where payable, was, with other notes of a similar character, disposed of to the plaintiff, a broker in Piedmont, West Virginia, on the 21st of October, 1819. 1. The first question raised by exception, is that upon the admissibility in evidence of the contract.

This was offered by the defendant for the purpose of showing the nature of the transaction, and it was objected to by the plaintiff, upon the ground, as it would appear, that the duplicate held by the payees of the note was not produced as well as that held by the defendant. But there is noth-, ing in this objection, and the Court was right in overruling it. Where a contract is executed by the parties thereto in duplicate or triplicate form, the parts are denominated duplicate or triplicate originals, and they are all primary evidence, the one as much so as the other. It does not require, in order to introduce one of the duplicates, that notice should be given to produce the other 1 Tayl.

Ev., p. 425, sec. 396; 1 Greenl. Ev., seo. 558. 2. With respect to the prayers offered by the respective parties, we think the Court below was entirely right in its ruling thereon. The first prayer offered by the plaintiff, and which was rejected by the Court, was clearly erroneous, and the Court was therefore right in rejecting it.

It sought to deprive the defendant of all defence to the note, upon the ground of fraud in its inception, and of notice thereof to the plaintiff, by obtaining from the Court an instruction that there was no evidence legally sufficient to charge the plaintiff with notice of the fraudulent character of the note. But there was evidence, and it was properly left to the jury. In granting the second and fourth prayers offered by the plaintiff, the law was as favorably stated for the plaintiff as he could possibly require to be stated ; and we think those two instructions embraced the whole case, ⁴⁵¹ so far as the plaintiff’s claim as a bona fide holder for value was concerned. If he could not maintain his right to recover under those instructions, it must have been because the evidence was against him on the question of notice or want of bona fides in obtaining title to the note.

The instruction given at the instance of the defendant was simply the converse of the propositions contained in the instructions given at the instance of