Citizen's State Bank of Newton v. Rowe , 36 S.D. 349 ( 1915 )

POLREY, J.

[1,2] In the preparation of the -opinion, in this case (153 N. W. 939) the writer inadvertently assumed that E. R. Maytag, who was president of the plaintiff bank at the time it purchased the note involved, was president of the International Mausoleum Company at the time of the execution of the said note, and that, for that reason, he had knowledge of the infirmity of the note at its inception. In a petition for a rehearing respondent calls our attention- to the fact that in this assumption we were mistaken, as the -said F. L. Maytag did not 'become president of the said company until -some time after the execution of said note, ■though prior to the transfer thereof to plaintiff. This being the case, neither the said Maytag n-o-r the plaintiff -can be charged with constructive notice of the illegality of the note. But, as the note was void in its inception, -the burden of proof is cast upon plaintiff to show that it was -a bona fide purchaser of -the note for value and before maturity; and this question should have been submited to the jury a-s requested by appellant. Landauer v. Sioux Falls Implement Co., 10 S. D. 205, 72 N. W. 467; Tredick v. Walters, 81 Kans. 828, 106 Pac. 1067; Kniss v. Holbrook (Ind. App.) 40 N. E. 1118; Horstman et al. v. Zimmerman et al. (Pa.) 4 Atl. 171; Kirby v. Berguin, 15 S. D. 444, 90 N. W. 856.

For the refusal to submit this question to the jury, a new trial must be awarded. To this extent the opinion of the court is modified, and the rehearing denied.

WHITING, J, not sitting.