First National Bank v. Hughes

SEARLS, C. This is an action to recover upon a promissory note dated May 25, 1891, made by defendant George T. Hughes, for $700, payable to the order of Jesse Harris, three years after date, at the First National Bank, Fort Collins, Colorado, with interest, etc. Plaintiff sues as the indorsee and owner of the note. Defendant’s amended answer denies plaintiff’s ownership of the note, or that it was ever the lawful owner thereof, or that it was ever, for a valuable consideration or at all, assigned to plaintiff, or that he is indebted to plaintiff on account thereof. Further answering, defendant avers that, at the date of the note, he purchased from the payee thereof, Jesse Harris, a “ Cleveland .bay stalllion,” for $2,100, for which he gave three promissory notes, of $700 each, payable in one, two and three years—the note in suit being the last thereof. The answer then proceeds to aver that Harris, as an inducement to the purchase of "said Horse, represented that the horse was a pure-bred Cleveland bay horse, and would transmit his color and general characteristics to all his progeny; that at the end of two years the horse proved to be not a pure Cleveland bay, and his progeny was of mixed and off colors, and but few of them were Cleveland bays; that the representations of Harris were false and fraudulent, and made with a view to misleading defendant,, and inducing him to purchase and give the three notes; that before the development of the progeny defendant had paid the first two notes, amounting to $1,500, which was in excess [456]of the value of the horse; that before this action was brought he tendered the horse to Harris, and demanded the note here in suit, etc.; that the consideration of the note has failed, etc. He further avers, on information and belief, that the note was not transferred to plaintiff for a valuable consideration, “but only for the purpose of collection,” and was made after maturity thereof.

Among the errors assigned by the appellant, an important' one is that a special finding of the jury is unsupported by and is contrary to the evidence. The court submitted to the jury the following interrogatory: “Interrogatory No. 1. Was the plaintiff the owner of the note in suit at the time of the commencement of this action?” To which the jury returned for answer, “No.” Plaintiff, on its part, for the purpose of establishing its case and its ownership of the note in question, (1) introduced the note in suit, duly indorsed by Jesse Harris, the payee thereof. (2) It introduced the depositions of three witnesses, viz., of Franklin P. Avery, president, G-. A. Webb, cashier, and L. C. Morse, assistant cashier, of the plaintiff bank, all of whom testified clearly and positively that the bank was the absolute owner, by purchase for a valuable consideration before maturity, of the note in question. Their testimony does not differ, and we quote that of Morse as a sample of the whole. It is as follows: “I am a resident of Fort Collins, Colorado. Am assistant cashier of the First National Bank of Fort Collins. I was in the bank at the time of the transfer of the note in question, and examined the boobs again to-day. The note was transferred to the First National Bank of Fort Collins before it became due, for a valuable consideration. The transfer to the bank was made March 21, 1894 (it fell due May 25, 1894). $739.25 was the price paid for the note. We bought the note for its present worth at that time, and gave Mr. Harris the money for it. The note was not left by Mr. Harris with us for collection or as a collateral security.” Defendant also offered in evidence a letter from Jesse Harris to said defendant, dated before the maturity of the note, viz., May 7, 1894, in which he says “that the First National Bank of this place [Fort Collins] owns your note coming due this month.”"