Charles A. Wilson, Respondent, v. Herman Rocke et al., Appellants

Charles A. Wilson, Respondent, v. Herman Rocke et al., Appellants. (Submitted June 12, 1874; decided June 19, 1874.) This was an action upon a promissory note tor $1,500 made by defendant Rocke, payable to the order of defendant Miller, and indorsed by the latter. . The note was given by Rocke in part payment for a quantity of malt bought by him of Miller, who sold the same as agent for one Ernst. Under his agreement with Ernst, Miller was to receive five cents on a bushel commission on sale, he giving to Ernst whatever was received, either money or notes, on sales. Instead of delivering this note to Ernst he sold it to plaintiff for $1,200. Plaintiff was a commission merchant and testified that he purchased the note as an article of- merchandise, having satisfied himself of the solvency of Rocke. At the close of the evidence the court remarked that there was no defence. Defendants’ counsel urged that if Hiller was acting as the agent for Ernst, the real owner of the malt, and received the note therefor under the 'obligation to turn it over to his principal, and instead of doing so passed it to a third party, defendants were not liable in this action. The court overruled this and directed a verdict for plaintiff, and defendants excepted. Held, no error; that while it was true that where a note is obtained from the maker by fraud or duress, or- is negotiated in fraud of the rights of the real owner, the onus is upon the holder of showing that he acquired it in good faith and for value (First Nat. Bk. of G. v. Green, 43 R. Y., 298; Bailey v. Bickwell, 13 H. & W., 73 ; Peacock v. Rhodes, 2 Doug., 633), it appeared here that both court and counsel assumed that plaintiff was such a purchaser, and upon this assumption plaintiff’s title was paramount to that of Ernst and he was entitled to recover; that the correctness of this assumption could not be disputed upon appeal as no question in reference thereto was raised upon the trial and no request made to submit it to the jury. George Carpenter for the appellants. Stephen D. Stephens, Jr., for the respondent. [MAJORITY — Grover, J.,] Grover, J., reads for affirmance. All concur. Judgment affirmed.