Maples v. Browne

The opinion of the c.ourt was delivered, by

Woodward, C. J.

— We think the court erred in rejecting the evidence mentioned in the defendant’s written offer. Had the evidence come up to the offer (and on this writ of error we are bound to presume that it would have done so), it would have become a question for the jury to decide whether the note in suit was not one of those which it was the evil habit of the defendant to leave in blank with John Browne, his clerk. Though direct proof of identity were wanting, the circumstances offered might, in the judgment of the jury, have furnished ground for a reasonable inference that would have been equivalent to direct proof. The confidential relations of the defendant and Browne, their habits of business, the pecuniary inability of the latter to become the owner of this note honestly,, the transfer of it to his son so long after it was due, and the failure, after notice, to prove a consideration paid for the note either by Browne or his son, — these facts, supposing them proved, would have justified a jury in finding that this note, like others, had been left with Brow'ne to be used in the defendant’s business, but that the defendant’s confidence had been abused in this instance, and the note in suit fraudulently misappropriated. We do not say that these would have been the necessary and inevitable conclusions from such evidence, but only that they might possibly and fairly have been deduced, and therefore the defendant was entitled to have his evidence passed upon by the jury.

It is not to be doubted that if the defendant had convinced the jury of what he alleged, he would have entitled himself to the verdict, for the plaintiff took the note over due, and therefore with all its imperfections on its head. The note fell due, according to its tenor, the 2d of May 1860, but was not assigned to the plaintiff until November 1st 1861. The endorsement in blank by John Browne proves nothing, since the note was found in his possession at the date of the assignment. Thomas, who wrote the assignment, swore that Edward Y. Browne was not present when it was written and signed, which shows that at date John Browne had not parted with the note; — that his possession was still exclusive. Now, if in the hands of an endorsee the blank endorsement would have imported a negotiation in due course of business, it could import nothing of the sort in the hands of the payee himself. Whether he endorsed it the day of the assignment or previously, his exclusive possession of the paper, unexplained, implied that he had not yet negotiated it. If not negotiated then, it was discredited paper, and the plaintiff took it subject to all the equities existing between the original parties. Such is the doctrine of innumerable cases, sufficient samples of which are referred to in the argument of counsel.

But more than this: if the plaintiff’s father committed the grievous fraud alleged, the plaintiff was bound, after the notice he received, to show the consideration he paid for the note, even though it came to his hands before it was due: Beltzhover v. Blackstock, 3 Watts 27; Hutchinson v. Boggs & Kirk, 4 Casey 296. He alleged, in his declaration, that he had paid a good and valuable consideration, and he was duly required to prove it, and if, on the next trial, the defendant proves what he offered, the plaintiff will probably find it necessary to show himself a bond fide holder for a, valuable consideration, else the jury will be likely to consider him no better than the finder of a lost note. If Maples made the note to Browne for salary or other valuable consideration he should be held to payment, if made without consideration and the plaintiff shows himself a bond fide holder for valuable consideration, Maples should still be held to payment ; — but if the note was obtained and transferred, as alleged by the defendant, the plaintiff, no more than his father, can enforce its payment.

The judgment is reversed, and a venire facias de novo is awarded.