Lynch v. Holbrook

RICHARDS, J.

This was an action brought to recover upon a promissory note for the sum of fifteen hundred dollars signed by the defendants and payable to one J. B. Graves or order one month after date and transferred by said Graves to plaintiff before maturity.

The defendants in their answer denied that the note had ever been delivered to said Graves, alleged that the same had been transferred to the plaintiff after maturity, and had been taken by him from Graves with notice of the fact that it was without consideration, and further alleged that

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said note had been obtained by said Graves through certain fraudulent representations which would have entitled said defendants to avoid said note in the hands of any but a

bona fide

transferee for value before maturity and without notice.

When the cause came on for trial the trial court refused to permit defendants to make proof of their said defense of fraudulent misrepresentations in avoidance of said note until they had presented evidence to show that the plaintiff was not a

bona fide

purchaser of said note for value and before maturity. In an attempt to make this showing the defendants offered evidence of the fact that Mr. C. L. MeEnerney, who was the attorney of record for the plaintiff in the case at bar, had also been acting as the plaintiff’s attorney in other matters at the time of the transaction between the defendants and said Graves through which said note had been given, and that said G. L. MeEnerney was also at said time- attorney for said Graves in connection with said transaction, the claim of the defendants being at the time of the offer of such evidence that whatever knowledge said MeEnerney had become possessed of by virtue of the fact that he was the attorney for Graves in said transaction was to be imputed to the plaintiff for whom said MeEnerney was at the same time the attorney in other matters unconnected with said transaction. The trial court refused to concur in this contention, and also refused to admit in evidence a letter written by said MeEnerney to one of the defendants shortly after the time of the transaction between the defendants and said Graves by the contents of which they claim the plaintiff would be bound, and by which they also claimed they would be able to contradict certain testimony which MeEnerney had given as to the date and fact of the delivery of said note to plaintiff. The court refused to admit such letter for that purpose, and also refused to permit the defendants to inquire of a witness named McGuire as to certain statements which MeEnerney was claimed to have made to him as to the time of the delivery of the note in question to the transferee. These various rulings the defendants have assigned as error upon this appeal.