Porter v. Browns Valley State Bank , 41 S.D. 132 ( 1918 )

WHITING, P. J.

Plaintiff, as receiver of a certain corporation, alleged1 that one Nonby had formerly been the secretary and manager of such corporation; that Norby had dlrawn a check in the name of such corporation upon a bank in which such corporation had fmidis upon deposit sufficient to meet such check; that Norby had1 given such check to defendant in payment of an individual indebtedness owing from Norby to defendant; and that defendant had! collected such -check of the -bank on which it was drawn. There was -no allegation that t'he indebtedness of Norby to defendant was evidenced by a note.

To establish his case, plaintiff introduced in evidence an exhibit purporting .to be a promissory note drawn to defendant. The1 lower right-hand corner of such -exhibit ’had been torn off, so that there appeared no name of the maker on the face of the exhibit. On the back of such exhibit appeared indorsed, among other names, that of Norby. Plaintiff also placed in evidence the check, and proof that defendant had collected! same. Plaintiff then rested his case, and the trial court, upon motion of defendant, directed a verdict for defendant. From a judgment entered upon suc'li verdict, and from an order denying a new trial, this appeal was1 taken.

The sole question before us is the correctness of the court’s ruling in directing the verdict. The usual place for the signature of the maker of a note is upon the fact thereof and at the lower right-hand corner. -Certainly, without further proof, this exhibit, with its lower right-hand corner torn off, was no evidence of an individual indebtedness from Norby to defendant, merely because Norby’s name was indorsed upon the hack thereof. The answer admitted that at different times- Norby had given 'his individual notes for moneys- borrowed by the corporation of defendant. The answer did not describe any particular note that had1 been1 so given. Appellant contends that this answer was sufficient to make, with the evidence introduced, a prima facie case for appellant. -If tibe complaint had- alleged that Norby’s indebtedness to defendant was evidenced by a note, describing it, and then the answer had:, by way of confession and avoidance, admitted the execution of such note, but alleged it was- given for a debt of the corporation, then appellant might well contend that the admission in. the “confession” was sufficient in- connection with appellant’s evidence to make out appellant’s prima facie case. But the jury, simply because defendant had admitted that at times- NoTb}r had given his own notes, neither the amounts nor dates of such notes 'being alleged, would have had no right to infer that this particular exhibit was -one of the notes which Norby had so given to defendant.

The judgment and order appealed from, are affirmed.

SMITH, J., not sitting.