More v. Finger
Before: Gray
Synopsis
Replevin—Negotiable Paper.—Where Defendants Obtained possession of a note from one whom they knew had parted with his title thereto, plaintiff is entitled to recover possession thereof, without restoring to defendants any amount which they may have paid the pledgee of the note in order that they might fraudulently gain possession of same.
Replevin—Negotiable Paper.—Evidence That Defendants were mutually engaged in the accomplishment of the common purpose of obtaining possession of a note, and did obtain possession of it by a deal made with plaintiff’s husband, who they knew had parted with all title to the note, and while he was intoxicated, is sufficient to support a verdict in favor of plaintiff.
Conspiracy.—Circumstantial Evidence Tending to Prove a conspiracy is properly admissible, with the qualification that if a conspiracy is not shown such evidence may be stricken out on motion.
Promissory Note—Holder in Due Course.—Receipts Indorsed on a promissory note, and signed by the payee, do not make the holder of the note the indorsee thereof, within the meaning of Civil Code, section 3124, providing that the indorsee of a negotiable- instrument, in due course, acquires an absolute title thereto.
Promissory Note—Holder in Due Course.—An Instruction That if the jury believe that there was known, at the time of the transfer of a note, facts sufficient to arouse the suspicions of an ordinarily prudent person, then the purchaser of the note cannot defeat the title of the true owner, is immaterial, where it appears, without conflict, that the parties so purchasing the note are not indorsees of the note, and therefore received no better title than the assignor had.
GRAY, C. This is an action of claim and delivery. The plaintiff had judgment, and defendants Finger and Rogers appeal from the same, and also from an order denying them a new trial. The amended complaint sets out the following facts: Plaintiff is the wife of Wallace H. More. On the 17th of April, 1894, Thomas R. More executed to his brother, Wallace H. More, his promissory note for $3,500, due two years after date, and thereafter paid $500 on said note. That thereafter said Wallace borrowed from defendant Kaeding $25, giving his note therefor, and delivered to Kaeding the Thomas R. More note as collateral security for said $25. That thereafter, on December 3, 1894, the plaintiff and her husband borrowed $15 from Kaeding, gave their notes for it, and agreed that the said Thomas R. More note should be held as collateral security therefor. That thereafter, on December 12, 1894, Wallace H. More gave and assigned, by an instrument in writing, the said Thomas R. More note to the plaintiff, and that plaintiff since “has been, and now is, the true and lawful owner of said promissory note, as her sole and separate property.” That after notice to the defendants, and with full knowledge on their part of the said assignment to plaintiff by her husband, the defendants conspired and confederated to cheat and defraud the plaintiff out of said note; [328]and, in pursuance of such conspiracy, the brother of Wallace, Thomas R More, by certain tricks, separated her husband from plaintiff, and plied him with liquor until he was so drunk that he did not know what he was about, and while he was in that condition procured a transfer and assignment of the note in controversy from him to one of their number in exchange for about $290 in money, a duebill for $100, and a pretended conveyance of a piece of property of little or no value, each and all of the defendants then and there well knowing that the said note was the sole and separate property of plaintiff. The value of the note is then alleged, and plaintiff prays judgment for the return of the same to her, or the value thereof, in case a return cannot be had.
The facts set forth in this amended complaint show that the plaintiff has a good cause of action against the defendants in claim and delivery, and it is not open to the objection that two causes of action have been improperly joined therein. Nor is it amenable to any of the special objections set forth in the demurrer to it interposed by the appellants and referred to in their brief. That the amended complaint does not allege a payment or an offer to pay the amounts for which the note was pledged to the defendant Kaeding is not an objection thereto available to the appellants. Kaeding has not appealed, nor did he demur to the amended complaint.
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