We are of the opinion that the verdict is entirely unsupported by the evidence given on the trial. We find no evidence of any agreement made by Heller, Bro. & Co. either with Stumes or the other creditors to sign the com*431promise paper, until he signed the same; nor is there any evidence that when they signed it, they declared that they were creditors to the amount of $700.
All the evidence, presumptive and direct, relating to the time when the notes were transferred to Kohn, shows that they were transferred before the compromise papers were signed. The presumption of law arising from the mere production of the notes is, that they were both negotiated before they became due; and the positive proof shows that one was negotiate® after it was due, and the other before. As the evidence does not 'show that Heller, Bro. & Co. had made any agreement to sign the compromise papers until after the notes were both sold, the signature of such agreement after the sale was made could not affect the rights of the purchaser, even as to the note that was past due, and no act or declaration of Heller, Bro. & Co., after the notes appear to have been transferred to Kohn, could in any way change the rights of Kohn or his indorsee. If the jury were justified in disbelieving the evidence of Heller, I cannot see that the presumption of the law, that the notes were transferred before they became due, was overcome in any way by the evidence of the witness Heller; and, neither Kohn nor Gutwillig having signed such compromise, they are not bound by it, and are entitled to recover the whole amount due on the notes, unless it can be shown that the plaintiff holds the notes. as a mere trustee for the firm of Heller, Bro. & Co.
"When the plaintiff had made out a presumptive right to recover, upon the production of the notes in court, properly indorsed, no mere declaration or admission of Heller not made as a witness in the trial could destroy such right. In order, therefore, to destroy the plaintiff’s right to recover, it was incumbent on the defendant to show, by affirmative proof, that the notes were not sold and transferred by Heller, Bro. & Co. before the signature by them of the compromise paper; and proof that Heller, Bro. & Co. had stated or admitted that *432they held these notes at the time of the signature of the compromise paper could not be admitted as evidence of the fact against the plaintiffs.
Upon the evidence, as it stood when the defendant rested his defense, the plaintiff was clearly entitled to ask the court to direct a verdict in his favor for the amount of both notes. The defendant had not, as I understand the evidence, shown that Heller, Bro. & Co. had agreed to sign the compromise papers for the whole amount of their claims, including the notes, nor that they held the notes when they did in fact'sign the same. The defendant knew their signature was not accompanied with a statement of the sum they then claimed as due them; and the only bad faith which could be attributed to them was, that they concealed the fact that they had in fact parted with the notes. This fact did not, we think, change the burden of proof, and require the plaintiff to show that he purchased the notes in good faith and for a valuable consideration.
The notes, having been transferred to Kohn before Heller Bros, signed the compromise papers, and before they had made any agreement to sign, were, at the time of the transfer, and in the hands of Heller, Bro. & Co., valid notes against the defendant for their full amount; the payees could have maintained an action upon them for the full amount thereof; and nothing which appears to have been done by them Tip to that time would have defeated such action. Having transferred the notes whilst the rights of 'the payees were in no way impaired by anything then done by them, the indorsee took them with such right of recovery unimpaired, and nothing thereafter said or done by the payees could impair such right. But, had it been proved that Heller, Bro. & Co. had agreed orally with the other creditors to sign the compromise papers for their entire claim, including the notes, and had afterwards signed the compromise agreement in the manner they did, such oral agreement on the part of the payees, ad*433mitting tlie same to be binding in law upon them, would not defeat the plaintiff’s right of action for the whole amount of the note which was not due at the time the same was transferred to him or his immediate indorser, unless knowledge of such agreement had been brought home to him at or before the time he took transfer of the mote; nor do we think that such evidence would be sufficient to cast the burden of proof upon the plaintiff, of showing that he had no notice of such agreement at the time he purchased the note. Reeve v. Ins. Co., 39 Wis., 520; Catlin v. Hansen, 1 Duer, 310; Hart v. Potter, 4 Duer, 458; Ross v. Bedell, 5 Duer, 462; Kelley v. Whitney, 45 Wis., 110-117; Stevenson v. O'Heal, 71 Ill., 314; Howry v. Eppinger, 34 Mich., 29-33; Croft v. Bunster, 9 Wis., 504; Collins v. Gilbert, 94 U. S., 753-760, 761.
As the whole evidence in this case shows that, at the time the notes were transferred to the plaintiff’s immediate in-dorser, they were valid and existing claims for the full amount due and to become due upon them, we do not think the transfer of them was such a fraud upon either the maker or the other creditors of the maker, as should change the burden of proof, and require the plaintiff to show affirmatively, by positive proof, that he purchased them in the usual course of trade, for a valuable consideration.
In order to cast the burden of proof upon the holder of a promissory note, of showing that he paid value therefor, it is necessary that the defendant should show that the note or bill is founded in fraud, or was fraudulently put in circulation. See cases above cited, and Smith v. Braine, 16 Ad. & E., N. S., 250; Bailey v. Bidwell, 13, M. & W., 73; Pitch v. Jones, 5 El. & Bl., 238; Harvey v. Towers, 6 Exch., 660; Hall v. Featherstone, 3 Hurl. & Nor., 284; Mills v. Barber, 1 M. & W., 432; Tucker v. Morrill, 1 Allen, 528; Sistermans v. Field, 9 Gray, 331; Brush v. Scribner, 11 Conn., 390; Smith v. Sack Co., 11 Wall., 139-147; Noxon v. De Wolf, 10 Gray, 343-347; Ranger v. Cary, 1 Met., 369-373.
*434Upon the whole evidence in the case, we think the plaintiff was entitled to judgment fox’ the face of the notes, and that the court erred in not directing a judgment for the plaintiff when the defendant rested his case, and in refusing the instructions asked by the plaintiff when the case was finally submitted to the jui’y.
It is urged that the appeal in this case should be dismissed because the plaintiff mad,e a motion in the court below for a new trial, the court granted the motion and oi’dered a new trial upon the payment of ten dollars costs, and the plaintiff declined to pay the costs imposed, and thereupon judgment was rendered upon the vei’dict, and the plaintiff appealed to this court. It is urged that, as the only relief whiok the plaintiff can get in this court is a reversal of the' judgment and a new trial, he should not be permitted to appeal from the judgment when the court below sets aside the verdict and grants a new trial. "Without determining the question whether a party is justified in refusing to take the benefit of his motion because it is granted upon terms which he deems unjust, we are disposed to hold that, as a rule of practice, the party moving for a new trial may, after the same is gi’anted, waive his motion without prejudice to his right of appeal from the judgment, if one be thereafter entered in the action. It may be for his interest that the questions in the case should be settled by this court before a new trial is had, as the settlement of the law of the case might do away with the necessity of a new tidal altogether, or at least relieve the parties from the cost of litigating questions which it might otherwise be deemed necessary to litigate upon such new trial.
We are unable to see that any great evil can result from permitting, the party moving for a new trial to waive the benefits of his motion; and when he does so, and judgment is entered upon the verdict, such waiver is certainly no bar to his right to appeal to this court from the judgment so entered, in order to review any errors which may have been committed upon the trial.
*435By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.