State National Bank of Springfield v. Bennett , 1894 Ind. App. LEXIS 335 ( 1894 )

Gavin, J.

Appellant sued appellee upon a promissoiy note dated November 8th, 1890, due in one year, executed to Bernard & Hunter, payáble at the Citizens’ State Bank of Noblesville, Ind., the note having been assigned to appellant by indorsement thereon before maturity and for a valuable consideration.

For answer appellee set up:

1st. That the note was given for the right to sell a certain patent fence, and that the affidavit and copy of letters patent, required by section 6054, R. S. 1881, had not been filed in the proper clerk’s office, nor had the words “given for a patent-right” been inserted therein, according to the terms of this statute.

2d. Want of consideration.

3d. That the consideration of the note was the right to use and sell a certain patent fence, and false representations, in that it was not patented as represented, which were relied upon by appellee.

In each paragraph it is averred that appellant had, at the time of the purchase of the note, full knowledge of the facts therein set forth.

The only questions here presented arise upon the motion for new trial.

What is styled the "conditional examination of plaintiff,” being the evidence of its officers, was taken by appellee under an agreement, in which it is recited that there are several cases involving similar questions, and is also provided "that any testimony that may be thus taken at the instance of the defendant in this case may be used by the plaintiff, at its option, and also at the plaintiff’s option, such testimony so far as the same may be relevant may be admitted in evidence in each and all of said cases.

The defendant in each of said cases has the right also, if they shall so desire, to introduce such testimony in said several cases. But neither party to this agreement waives any question as’ to the competency or relevancy of any such testimony.”

By the terms of this agreement, the only objections which could be heard are those relating to the competency or relevancy of this testimony, and appellants are precluded from questioning it on the ground that it is taken as a "conditional examination” rather than as a deposition.

Under the circumstances of this case, there was no material error in refusing to permit appellant to show that its officers had no knowledge of the law of Indiana regarding patent-right notes. Such want of knowledge could not be considered as tending to establish the good faith of appellant.

The sixth, seventh, eighth, and ninth specifications relate to evidence admitted over appellant’s objection. No ground of objection whatever was stated to the court. Consequently, no question is saved for our consideration. The general rule is that the Appellate Court will consider only such grounds of objections as are presented to the trial court. Swaim v. Swaim, 134 Ind. 596, 33 N. E. Rep. 792; Noftsger v. Smith, 6 Ind. App. 54, 32 N. E. Rep. 1024.

The court admitted in evidence certain newspaper accounts of the arrest of one of the payees of this note, at Muncie, Ind., about two months before the assignment of this note, in which the payees were charged with swindling parties by selling for $144 some right connected with a fence claimed to be patented but on which the patent had long ago expired. The jury were expressly instructed that the articles were to be considered only as bearing upon the question of notice to appellant. In view of the evidence tending to show that appellant’s officers read these articles before they purchased the note in suit, and that they understood the Muncie transactions were but a part of tlie regular business of Bernard & Hunter, in the course of which this note had been taken, the evidence was competent for the purpose for which it was admitted.

The objection raised by the fifteenth cause for new trial is subject to the same infirmity found in the sixth, seventh, etc.

Instructions Nos. 2, 3, 5, 6, given by the court, are complained of. These instructions state the law as to the issue formed by the first paragraph of the answer. Objection is made to them for the reason that they are inapplicable to the evidence as claimed by appellant. The objection urged against them goes rather to the sufficiency of the evidence to sustain the answer, than to the correctness of the instructions, which state the law fairly and correctly as applicable to the issue made by the pleading.

If the written contract showed, as asserted by counsel, that no patent right, either real or claimed, entered into the consideration of the note, then there was a failure of proof as to this issue. But the rule that an instruction should be applicable to the evidence, as laid down in Summerlot v. Hamilton, 121 Ind. 87, can not be construed to mean that the court errs in stating to the jury correctly the law applicable to the issues made by the parties.

The instructions stated the law correctly as far as they went, and did not, in any degree, intimate to the jury that the written contract referred to sustained the answer.

If the appellant desired the court to place a construction upon this contract, he should have asked for it. Elliott’s App. Proced., section 647; Barnett v. State, 100 Ind. 171.

Section 6055, R. S. 1881, applies in terms to any “patent-right or right claimed” to be a patent-right. We are unaware of any rule of law requiring such “claim” to be made in writing, nor can we see any good reason for such a requirement.

Counsel argue that whether appellant fraudulently refrained from inquiry was not the issue in this case, but simply whether or not it likd notice of the vice in the consideration of the note.

Where the consideration of the note is illegal, or it is obtained from the maker by fraud, the burden is upon the holder to show that he purchased it in good faith, without notice, and in the usual course of business. Giberson v. Jolley, 120 Ind. 301; Tescher v. Merea, 118 Ind. 586; First National Bank v. Ruhl, 122 Ind. 279; Schmueckle v. Waters, 125 Ind. 265; Farmers’ Loan and Trust Co. v. Canada, etc., R. W. Co., 127 Ind. 250; Bunting v. Mick, 5 Ind. App. 289.

In Schmueckle v. Waters, supra, it is said by Mitchell, Judge: “Where, however, the circumstances show that the purchaser of paper refrained from making inquiry lest he should thereby become acquainted with thetransaction out of which, the note originated, he can not occupy the attitude of a holder in good faith without notice.”

Filed Jan. 23, 1894.

The rule thus laid down we regard as an extremely equitable and salutary one. No man should be permitted to willfully close his eyes and then excuse himself upon the ground that he did not see. The instructions upon the question of notice we regard as being fully as favorable to appellant as he was entitled to ask.

The instructions asked were not, so far as the record discloses, signed by the appellant or its attorneys. The contention of appellee must, therefore, be sustained, and we are compelled to hold that no question thereon is saved. Board, etc., v. Legg, 110 Ind. 479; State v. Sutton, 99 Ind. 300; Beatty v. Brummett, 94 Ind. 76; Darnell v. Sallee, 7 Ind. App. 581, 34 N. E. Rep. 1020.

We have, however, examined the instructions asked, as set out in the record, and are of opinion that so far as they state the law they are fully covered by the charges given.

The evidence fully sustain#’the verdict. •

We have found no material error in the cause, and the judgment is, therefore, affirmed.

Davis, C. J., did not participate in this decision.