Fenton v. Robinson

James, J.

In this case no judgment was pronounced on the verdict, none entered and no appeal taken. The case comes here solely upon the order of the judge at the circuit, upon a motion for a new trial on a case and exceptions, under authority of section 265 of the Code, and, if a new trial is denied, judgment on the verdict may be given in this court. The plaintiff is therefore confined to the exceptions taken at the trial. Siegel v. Schantz, 2 N. Y. Sup. 353.

The action was upon a promissory note for $200, payable to Ingalls or bearer, which had come to the plaintiff as a Iona fide purchaser, for value before maturity.

The defense was that defendant never made or delivered the note; that the signature thereto, if made by the defendant, was obtained by fraud, and without defendant’s knowledge that he was signing such a paper.

At the close 'of the trial the plaintiff requested the court to direct a verdict' in his favor for the amount of the note and the r'equest was refused.

The case was then submitted to the jury, the court charging : “ If defendant executed this note, understanding that he was executing a promissory note — understanding that he was to execute it to this agent in this business transaction, although he was induced to it by fraud on the part of this agent, it would be no defense to this suit; but if defendant supposed and believed and understood, a£ the time, that he was only signing a duplicate of an order for the delivery of machines, or a duplicate of a contract creating an agency for the sale of machines in the town of Hector, and did not understand or suppose, or intend to sign any promissory note at all, and was guilty of no neglect on his part in this transaction, in signing the papers—in signing papers he did not understand the real purport of—then these facts, if found from the evidence in this case, are a legal defense to this note.” So that the distinct question was put to the jury whether, if defendant did not intend to sign a note, or understand he was signing a note, and Ms signature was obtained by deception and without his knowledge, he was guilty of any negligence in signing, under the circumstances as shown by the evidence. Eo objection was taken by the plaintiff to this charge, except to that portion “ wherein the court charged the jury that if defendant signed the note, not knowing it was a note, he was not liable.” As no such charge appears in the case, nor any thing like it, unless accompanied by qualifying or explanatory words, the exception is of no effect. The jury found for the defendant.

Therefore, the only exception left in the case is the exception to the refusal of the court to direct a verdict for the plaintiff at the close of the trial.

This case in its facts is very similar to that of Chapman v. Rose, 44 How. 364; S. C., 9 Alb. Law J. 339, except that in this case the question of negligence Avas submitted to the jury, and in that, its submission Avas refused, and for that reason the case has since been reversed, 56 N. Y. 737. In Chapman v. Rose the charge Avas “that if the jury concluded, AvhenRose signed the orders, he did not intend to execute a note, as the transaction ne>'er called for one, it was not a note, and was never, at any time, valid in the hands of any party. The general term sustained this ruling. In reversing it, the Court of Appeals said : “ It turns out that defendant signed a promissory note, and that it is noAv in the hands of a holder in good faith for value. The question which arises on this branch of 'the charge uoav under consideration is, whether it is enough, as against a Iona fide holder, to show that defendant did not know or suppose he Avas signing a note, unless it also appears that he was guilty of no laches or negligence in signing the instrument. To that inquiry the attention of the judge at the trial was distinctly called, and the instruction which he gave, and which Avas excepted to, did not submit, but excluded tile consideration of it from the jury.”

The case of Foster v. Mackinnon, cited from L. R., 4 C. P. 704, in support of the ruling, was an action upon an indorsement of a bill of exchange, and the court charged the jury “that if the defendant signed it, not knowing it to be a bill, and believing it to be a guaranty in consequence of a fraudulent representation as to its character, and if he Avas not guilty of any negligence or laches in signing it, he was not bound. The jury found for the defendant. Upon a review, and upon a full and able discussion, the court held the direction to be right.”

Therefore, in this class of cases, I understand tfie rule to be, that when a negotiable promissory note is procured by fraud, deceit or mistake, the maker not having intended making a note, and it gets into the hands of a Iona fide holder for value before maturity, showing such facts constitutes no defense, unless defendant can go farther and shoAV and establish, that, in putting his signature to the note, he was not guilty of any negligence or laches. If a party can establish all these facts he cannot be charged Avith such an instrument any more than he can be with a note to which his name has been forged.

In this case there was evidence upon the question of negligence; the defendant’s age; being unaccustomed to business outside his farm; his efforts to read the papers; inability to understand them; his having them read over to him ; observing they were all right •as read, and contained no agreement to pay money except as provided in the contract. This evidence, even though weak, was proper for the jury; it would have been error not to have submitted it, and therefore the court was right in its refusal to direct a verdict as requested.

Upon the motion before us, we have no right to review the verdict; no-right to examine the. evidence, further than necessary to determine whether the court was right in refusing to direct a verdict for the plaintiff.

The motion for a new trial is denied, and judgment ordered for defendant on the verdict.