First National Bank v. Harvey

137 N.W. 365, 29 S.D. 284, 1912 S.D. LEXIS 193

• Court: South Dakota Supreme Court
• Decided: June 25, 1912
• Status: Published

Opinions

McCOY, P. J.

Plaintiff brought this action to recover of defendant the amount claimed to be due upon two alleged promissory notes, viz., one note for $700, dated March 31, 1906, due one year after date, payable to the order of plaintiff and purporting to be signed by Lizzie E. Jones as maker thereof and which note had indorsed on the back thereof, “Paid by J. G. Lund 9-5-’06, $200.00,” and “For value received I hereby sell and assign to the First National Bank of West Minneapolis, Minn., or order, the principle and interest of the within, and guarantee same waving demand, notice and protest. J. G. Lund”; and one other note for $2,000, dated June 16, 1906 due one year after date, payable to the order of J. G. Lund and purporting to be signed by Lizzie E. Jones and Stella A. Beam, by L- E. Jones, which "note had indorsed thereon, “Without recourse, J. G. Lund,” and “For value received I hereby guarantee the payment of the within note at maturity, or any time thereafter, with interest at the rate of - per cent, per annum, until paid, waiving demand, notice of non-payment and protest. J. G. Lund.” The defendant, Lizzie E. Jones, who is now Mrs. Lizzie E. Harvey, denied that she ever made, gave, or executed either of said notes, and that the same are forgeries; and if the signatures thereto of Lizzie E. Jones are in fact her genuine signatures, the same, were procured by means of some fraud, circumvention, or legerdemain unkno'wn to her. The jury found with defendant upon all the issues. Plaintiff appeals.

Appellant first contends that the evidence is insufficient to justify the verdict, but we are of the opinion that there was ample evidence submitted to justify the verdict. It will serve no useful purpose to set out the voluminous evidence herein. Many alleged errors are assigned based upon the reception or rejection of evidence. Mrs. Harvey was examined as a witness in her own behalf, and on direct examination was asked to testify in relation to a certain conversation had with J. G. Lund in the spring of 1908, the exact date of which conversation is not shown by the record, but the same occurred during a settlement between her and Lund of their business transaction concerning a real estate contract, the final settlement of which was evidenced by a written memorandum bearing date June 24, 1908. Mrs. Harvey was permitted to testify, over the objections of plaintiff, that the same was hearsay and not within the issues; that during the progress of said settlement she asked Lund what the mention of a $700 note appearing in her contract meant, and to which Lund replied, “I do not know, but guess somebody else’s contract got mixed up with this.” It is contended by appellant that this testimony should not have been admitted because the conversation took, place long after the said note had been transferred and assigned to plaintiff; that as to plaintiff the said conversation and statements of Lund were hearsay and not binding upon plaintiff.

[1] It is a general rule that the statements of a former owner of negotiable paper made concerning the same, after a transfer thereof to a third party, are not binding upon such third party and are hearsay, but there are some well-recognized exceptions to this general rule, and we are of the opinion this testimony is clearly within the exceptions. It seems to be held by many courts that, where a note is obtained by fraud or circumvention and is transferred to a party who participates in such fraud, and where the transfer itself was fraudulent and made for the purpose of cutting off the defense of the maker of the note as against such fraud and circumvention, then and under such circumstances the original payee of the note is still deemed to be the owner thereof, and statements made by him are competent and proper evidence to go-to the jury on the question of fraudulent intent in the inception of the note sued upon.

[2] When the question of the admissibility of this evidence as to said conversation with Lund arose on the -trial, it was for the trial court to determine whether the evidence then given was sufficient to authorize the jury in finding that 'said notes were obtained by fraud and circumvention; whether said Lund, notwithstanding said purported transfer to plaintiff, still had such an interest in said notes as would render his statements admissible; whether said transfer to plaintiff was in bad faith and made for the purpose of cutting off defenses of the maker; whether plaintiff participated in the procuring of said notes by fraud and circumvention and the bad faith transfer thereof to plaintiff; if the facts and circumstances then before the jury were sufficient to warrant them in so finding — then the court committed no error in overruling plaintiff’s objections. 1 Ency. Ev. pp. 532 to 537; Holmes v. Roper, 141 N. Y. 64, 36 N. E. 180; Gardner v. Barden, 34 N. Y. 433; McKean v. Adams, 11 Misc. Rep. 387, 32 N. Y. Supp. 281; Hogan v. Sherman, 5 Mich. 60; 6 Ency. Ev. pp. 14-16; Smith v. Livingston, 111 Mass. 342; Mee v. Carlson, 22 S. D. 365, 117 N. W. 1033, 29 L. R. A. (N. S.) 351; Iowa Bank v. Sherman, 19 S. D. 238, 103 N. W. 19, 117 Am. St. Rep. 941.

[3] The defendant, Mrs. Harvey, testified that never to her knowledge did she execute either of said notes sued upon in this action, and that she never s-aw either of said notes until the same were presented to- her for payment at her home in North Dakota in December, 1908; that the first she ever knew or heard anything about a $700 note in connection with her deals with Mr. Lund was in the spring of 1908 when she had said conversation with Lund — the statements contained in which conversation are objected to by plaintiff — and never heard of said $2,000 note until the same was presented to her for payment. It appears that Mrs. Harvey was formerly Lizzie E- Jones, and as such had business dealings with J. G. Lund, at his office in the city of ' Minneapolis, concerning the purchase and sale of said real estate. and that on March 31, 1906, they entered into what was denominated a “half profit contract of purchase,” whereby she was to furnish certain funds to him to be invested in real estate, and whatever profits accrued from the investments were to be divided between them. The said contract contained a clause as follows: “Cash $1,600.00, note $700.00 due one year, and assume mortgage $3,000.00, and 'by credit $200.00.”

Mrs. Harvey testified this clause of the contract had been altered and changed after the execution and delivery thereof by her by writing therein the words and figures: “Note $700.00 due 1 yr., and assume mortgage $3,000.00 and by credit $200.00” —.that after the figures $1,600 there was a blank line when she executed and delivered the contract, and that the balance of the clause had been filled in thereafter by some on'e without her knowledg'e or consent, and that she first discovered the alteration when making a final settlement of her land dealings with Mr. Lund in 1908, at the time the conversation took place to which plaintiff makes objection. Mrs. Harvey testified that on March 31, 1906, at the time said contract was executed, no mention was made of a $700 note, or the necessity thereof; that all that was required of her was to put up $1,600 cash; that she at that time did not have the cash, but expected to receive the same in a few days from Iowa from a sale of land there; that Lund stated he would let her have the cash; that on that day she did execute and deliver to Lund her note for $1,600, payable on demand, with no payee named therein, payable at the First National Bank of West Minneapolis, Minn., and which note she thereafter within a very short time paid to Lund, but which note was not redelivered to her until long after the commencement of this action; that she at no time ever had any business transaction of any kind or character with plaintiff, and never, as a matter of fact, knew that such a bank existed until long after the time of the purported making of said notes sued upon in this action. Mrs. Harvey further testified that on the 16th day of June, 1906, she was in the office of Mr. Lund in company with Stella A. Beam, a school-teacher; that no- business was transacted; they only talked regarding investments. “On June 17th I was again at the office of Mr. Lund and left with him for safe-keeping for Stella Á. Beam $100 of her monej". I had told her I had confidence in him; he said it was safer with him than in a bank; and he gave me á receipt for the money, hie 'then said he wanted a slip to file away in his office to show by whom this money was left, and then he placed a paper before me and asked me to sign my name and the name of Stella A. Beam, by L E. Jones, which I did. There was no writing of any kind on this paper. It was five to seven inches long, and from three to four inches wide, colored paper. I never signed the $2,000 note myself or for Stella A. Beam, by E. E. Jones; never saw or knew of -such note until December, 1908. There was no talk between me and Lund about executing such a note. There was no talk with Stella A. Beam about executing such a note.”,

The evidence further shows that at different times after March 31, 1906, in their land dealings, Mrs. Harvey, as Lizzie .E. Jones, executed three other promissory notes and delivered them to Lund, about which there is no controversy, and all of which notes are accounted for and included in the computations of the final settlement of said land transactions between Mrs. Harvey and Lund, bearing date June 24, 1908; that there was no reference made in sid final .settlement to either of the notes in question in this action, and that the same did not enter into the computations of said settlement in any manner; that the only reference in any way made to a $700 note was in the conversation objected to b] plaintiff; that the said setlement included the whole of the. real estate transactions had between Mrs. Hjarvey and Lund. It further appears that Mrs. Harvey, as Lizzie E. Jones, had resided in and around Minneapolis for some 15 years teaching in the public schools, and in 1906 and 1907 was engaged in running a boarding house in Minneapolis; and, getting married, moved to Dexter, Minn., and later to Bowman, N. D., and that during all said time she was almost continually, before and after ’ leaving Minneapolis, corresponding with Lund concerning their joint land deal, and that she was never in any manner notified, either by plaintiff or Lund, that said notes sued upon in this action were due, and requesting her to make payment, until December, 1908, after the death of Mr. Lund. Neither was any demand at any time ever made upon Stella A. Beam to pay said $2,000 note, although she had been a teacher in the Minneapolis schools for some seven years. The $100 deposit for safe-keeping was entered on the books of Lund as money paid to be invested by him in real estate. Stella A Beam testified the money was left for safe-keeping, and not for investment, and that she had the receipt for the same, and that the same was afterwards repaid to her by Miss Race, Lund’s cashier in his main office.

It appears that Lund had been extensively engaged for many years in the real estate business with offices at Canby and Minneapolis, Minn.; that he caused to be organized the First National Bank of West Minneapolis, the plaintiff, in connection with his real estate business; that he was president and owner of the majority of the stock of plaintiff, was a director, chairman of discount committee, and, in fact, general manager of plaintiff; that the cashier and most of the employes of plaintiff were and had •been employes of Lund for many years prior to the organization of plaintiff. The evidence shows that the said $700 note came into the possession of plaintiff on March 31, 1906, through the Lund land office, and that the same was charged to Lund’s account. The plaintiff does not’ claim ever to have had any business dealings with Mrs. Harvey concerning the making of said note, but the plaintiff obtained it from Lund. The assignment of Lund on the back of said note was not placed thereon until nearly two. years after the same came into the possession of plaintiff; it being claimed that Lund sold his interest in plaintiff bank to Shaffer ■Bros. & Brown about February 28, 1908, and this assignment and indorsement was placed on the 'back of the note on that occasion. This $700 note was made on a printed blank form having printed thereon after the blank space for the name of the payee, “At First National Bank of West Minneapolis.” In the making of this note •the place for the name of the payee was left blank, no^ name of the payee being written therein; the word “at” preceding the name of plaintiff was crossed with a pencil mark; the other written portions of the note are in ink. The note for $1,600 given by Mrs. Harvey to Lund on the same date is on the same form of blank, with the name of the payee left blank, and the word “at” not crossed. All these facts and circumstances, and many more of the same nature, were before the trial court and injury when the court was called upon to rule on plaintiff’s objection to the conversation between Mrs. Harvey and Lund.

The jury would have been warranted, under this evidence, in finding that said purported transfer to plaintiff of said note was colorably only, and not in fact made at all, and that there was no change in the identity of interest or ownership. The fact that Lund, nearly two years after said note went into the possessior of plaintiff as payee thereof, formally assigned the same to plaintiff and guaranteed the payment thereof would have a tendency to show that plaintiff was still exercising ownership. He did not make this assignment on behalf of the bank. If plaintiff was the owner of said note by being the payee, it was unnecessary to again make plaintiff the owner thereof by formal assignment. The jury would have been warranted under the evidence disclosed in finding that plaintiff knowingly participated in the obtaining of said note by fraud and circumvention. This note was made payable to plaintiff, who brings suit thereon as the original owner. It does not purport to be the note of Lund. . .

[4] Plaintiff, being a corporation, could only act by and through its officers and managers.

[5] If this note was forged, or the signature thereto obtained by some fraudulent trick or legerdemain, Lund, president of the bank, did it, or caused it to be done. Plaintiff obtained possession' of the note from Lund. The allegations of the complaint are that defendant, Lizzie E. Jones, executed and delivered said note to plaintiff, therefore, in taking this note, Lund was not acting as Lund of the land department, but as president of plaintiff. The evidence on the part of plaintiff to the effect that it purchased said note from Lund for $686, in due coure of banking business, does not at all correspond to the theory of the complaint. Whatever knowledge Lund possessed as to the origina of the notes in question must'be imputed to .plaintiff. Under the circumstances of this case, the ends of justice should not be defeated by permitting Lund to divide himself into two beings, one as manager and owner of the Luncl land business, and the other as president, director chairman of discount committee, and general manager of plaintiff, and then say that one part of Lund had no knowledge or notice of what the other part of Lund knew or did. For the purposes of this action plaintiff stands in the shoes of Lund, and whatever would have been a good defense and proper evidence against Lund, were he plaintiff, would also be a good defense and proper evidence against plaintiff. As to the $700 note, plaintiff stands as the original payee and original party thereto, and there is no evidence in this case showing that Lund was not still interested in said note at the time he made the statements in relation thereto to Mrs. Harvey, which is the basis of plaintiff’s objections. The assignment of Lund on the back of said note is said to have been placed there on the occasion of his disposing of his interest in said bank to Shaffer Bros. & Brown. There is no evidence showing a sale by Lund to these parties other than an incidental reference thereto in the form of a conclusion.

[6] The burden was on plaintiff to show the bona fides, for value, of the transfer of said note to plaintiff, and by which Lund lost his interest therein. Mee v. Carlson, supra. Plaintiff does not claim to be the owner of said note by virtue of said assignment of February 28, 1908. No consideration of any kind or character from Shaffer Bros. & Brown to Lund has been shown, or whether said transaction was a bona fide real transfer or only fictitious.

[7] One standing in the position of defendant in this case can seldom, if ever, be expected to establish fraud by direct proof, but can only rely upon the visible surrounding circumstances connected with the transactions and acts of the interested parties. Persons committing such frauds act with great caution and secrecy, and the direct evidence thereof is, in most cases, only known to them who participate therein, and .under such circumstances less evidence is required to establish the fact of the fraud than where direct evidence is obtainable. Jones, Ev. §§ 12, 179, and 190; 6 Ency. Ev. p. 18; Burch v. Smith, 15 Tex. 219, 65 Am. Dec. 154, and note.

[8] On the issue of fraud, great latitude is permitted in the introduction of evidence. The whole transaction from start to finish may be scrutinized. Statements and acts of the 'parties before and after the completion of the transaction are competent as throwing light upon their intentions.

[9] The limit of the scope and latitude in the introduction of such -testimony is within the sound discretion of the trial court, and only becomes error when it clearly appears there had been an abuse of such discretion. 20 Cyc. no.

[10] The facts and circumstances of said real estate transaction between Mrs. Harvey and Lund from start to finish were material and a part of the res gestae of the surrounding facts and circumstances of the giving of said notes, which included said final settlement as the final completion of said transactions. The said statement of Lund to Mrs. Harvey, concerning said note for $700, at the time 'said settlement was in progress, was more than a mere declaration or admission against interest, but was a verbal act constituting a part of the transaction itself. Wigmore, Ev. §§ 1745~177&-

[11] The entire transaction between Lund and defendant was relevant, although a part thereof o-ccured after the delivery of said note to plaintiff. Plaintiff called Mrs.- Harvey as its own witness and’ interrogated her in regard to her land transaction with Lund, and defendant was therefore entitled to show the whole transaction. This was the situation as it existed before the trial court at the time the testimony objected to- was offered. We are of the opinion the learned trial court committed no error in admitting such testimony. We have carefully considered each assignment of error and are of the opinion that no prejudicial error exists.

[12] Objections were made to certain testimony of Stella A. Beam concerning her transactions with Mr. Lund, but her evidence as a whole was clearly within the rule defined in sections 2141-2142, Elliott Ev.

[13] A portion of her testimony wa-s not the best evidence, but no prejudicial error occurred by its admission, as such testimony related to certain correspondence purely incidental in its nature and not in issue.

[14] Some objections were made to certain instructions of the court, but such instructions were more favorable to plaintiff than ■were warranted- by the evidence, and would not constitute prejudicial error.

The judgment and order appealed from are affirmed.