one of the District Judges of the Eirst Judicial District, sitting in the place of the Chief Justice, delivered the opinion of the court.
This action is brought to recover judgment upon a bank check. There was a verdict and judgment for the plaintiff. A motion for a new! trial was granted, and the plaintiff appeals therefrom. This is the second appeal of the casei (See Harrington v. Butte & Boston Mining Co., 19 Mont. 411, 48 Pac. 758.)
The order granting a new, trial is general in terms, simply sustaining the defendant’s motion; and, while the opinion of the trial judge is found in the transcript, it is not embraced in any bill of exceptions, is not part of the record, and cannot be considered. (Menard v. Montana Central Railway Co., 22 Mont. 340, 56 Pac. 592.) One of the grounds of the motion was the insufficiency of the evidence to' justify the verdict.
The first contention of the appellant is that the specifications of particulars in which the evidence was insufficient are not explicit enough to justify the trial court in hasing thereon an order for a new1 trial. Adopting the language employed by this court in Patten v. Hyde, 23 Mont. 23, 57 Pac. 407, we think the specifications are sufficient to’ point out the particulars in which the evidence is alleged to be insuffieienei to justify the verdict. They gave the plaintiff notice and advised the court in plain language of the matters that would be urged on the hearing of the motion.
This brings us to a consideration of the question whether the trial court erred in granting the motion. The plaintiff al*12leges in bis complaint the giving of the check in question by the defendant to Leggat; that Leggat' indorsed the same to "Wearth, and Wearth indorsed to plaintiff for value; and that plaintiff is the present owiner and holder thereof. Defendant, "by its answer, sets forth that Wearth obtained said check from Leggat by false, fraudulent and deceitful practices, and without consideration; that the check was delivered by Wearth to- plaintiff without consideration, for the purpose of cutting off any defense thereto by the defendant; and that plaintiff had knowledge that Wearth had acquired the check from Leggat fraudulently, and without consideration. The replication, in substance, denies these affirmative allegations of the answer. Upon the trial the plaintiff at once assumed the burden of showing the circumstances under which he acquired the check. The defendant then offered evidence in support of the allegations of its answer. In rebuttal, the plaintiff offered additional testimony as to how he came into possession of the check.
The burden was upon the defendant to prove that Wearth obtained the check from Leggat through fraud. If this were shown, -the burden was then upon the plaintiff to show by the. preponderance of evidence that he was a bona, fide holder for value. It must be regarded as the settled law of this state that when negotiable paper is shown to have been obtained from the maker or (as is alleged in this case) from the payee by fraud, a subsequent transferee must, before he is entitled to recover, show that he is a bona fide purchaser. (Thamling v. Duffey, 14 Mont. 567, 37 Pac. 363, 43 Am. St. Rep. 658; Rossiter w. Loeber, 18, Mont. 372, 45 Pac. 560.)
Whether or not the plaintiff satisfied this rule was a question, in the first instance, for the jury, under the instructions of the court. The jury determined that he had, and it then became the duty of the court, upon defendant’s motion for a new trial, to say whether the evidence, in weight, justified the verdict. The order for a new trial being general in terms, we must assume that the court was of opinion that the evidence was insufficient in the sense that it preponderated against the conclusion of the jury.
Rehearing denied July 21, 1902.We have carefully read the testimony. It is conflicting, and would justify a verdict for either party. It was. the- duty,of the trial judge, if satisfied that the verdict was not warranted by the evidence, to set it aside upon proper motion. (Paiten v-Hyde, supra.)
The order granting a new trial is affirmed.
Affirmed.
Me. -Justice Pigott : I concur. Me. Justice MilbueN : I concur. The Chibe Justice, having, -when a district judge, tried the cause in the court below, does not participate in the foregoing opinion.