First State Bank of Oklahoma City v. Tobin

Supreme Court of Oklahoma

First State Bank of Oklahoma City v. Tobin

1913 OK 506, 134 P. 395, 39 Okla. 96, 1913 Okla. LEXIS 463

Supreme Court of Oklahoma·Decided August 6, 1913·No. 2725·Published·Cited by 10 cases

Opinion

Opinion by

SHARP, C.

On November 11, 1908, the defendant executed and delivered to the Manufacturer’s Brokerage Company, or order, his promissory note in the sum of $100.00, payable in monthly installments. The first installment of- $10 matured December 15, 1908. On December 11th of said year, for a valuable consideration, the plaintiff purchased said note, and others, from the said brokerage company. Testimony was introduced on the part of the defendant tending to show a failure of the consideration for which the note was given, and that it was obtained in the first instance by a representative of the payee, by means of false and fraudulent representations practiced upon the maker. At the close of the evidence plaintiff moved the court to instruct the jury to return a verdict for the plaintiff, which motion was overruled, and the action of the court in so doing is assigned as error.

We have read with care the entire record, and fail to find any testimony tending to show knowledge, on the part of the bank, of either the alleged failure of consideration, or the fraud practiced by the payee in the procurement of the note. No brief has been filed in this court on the part of the defendant in error, and we do not know upon what ground an affirmance of the judgment below is asked.

The evidence shows that plaintiff purchased the note for a valuable consideration, before maturity, and without notice of any equities in favor of the maker and against the original payee. There was an utter want of any proof of bad faith on the part of the bank, in its purchase of the note, without which, the note being negotiable, due and unpaid, no sufficient defense was made out. Forbes v. First Nat. Bank of Enid, 21 Okla. 206, 95 Pac. 785; McPherrin v. Tittle et al., 36 Okla. 510, 129 Pac. 721; Citizens’ Savings Bank v. Landis et al., 37 Okla. 530, 132 Pac. 1101.

The judgment of the trial court should therefore be reversed, and the cause remanded for a new trial.

By the Court: It is so ordered.

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Opinion by

SHARP, C.

On November 11, 1908, the defendant executed and delivered to the Manufacturer’s Brokerage Company, or order, his promissory note in the sum of $100.00, payable in monthly installments. The first installment of- $10 matured December 15, 1908. On December 11th of said year, for a valuable consideration, the plaintiff purchased said note, and others, from the said brokerage company. Testimony was introduced on the part of the defendant tending to show a failure of the consideration for which the note was given, and that it was obtained in the first instance by a representative of the payee, by means of false and fraudulent representations practiced upon the maker. At the close of the evidence plaintiff moved the court to instruct the jury to return a verdict for the plaintiff, which motion was overruled, and the action of the court in so doing is assigned as error.

We have read with care the entire record, and fail to find any testimony tending to show knowledge, on the part of the bank, of either the alleged failure of consideration, or the fraud practiced by the payee in the procurement of the note. No brief has been filed in this court on the part of the defendant in error, and we do not know upon what ground an affirmance of the judgment below is asked.

The evidence shows that plaintiff purchased the note for a valuable consideration, before maturity, and without notice of any equities in favor of the maker and against the original payee. There was an utter want of any proof of bad faith on the part of the bank, in its purchase of the note, without which, the note being negotiable, due and unpaid, no sufficient defense was made out. Forbes v. First Nat. Bank of Enid, 21 Okla. 206, 95 Pac. 785; McPherrin v. Tittle et al., 36 Okla. 510, 129 Pac. 721; Citizens’ Savings Bank v. Landis et al., 37 Okla. 530, 132 Pac. 1101.

The judgment of the trial court should therefore be reversed, and the cause remanded for a new trial.

By the Court: It is so ordered.

First State Bank of Oklahoma City v. Tobin, 1913 OK 506, 134 P. 395, 39 Okla. 96, 1913 Okla. LEXIS 463 (Okla. 1913).

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