Wray v. Warner

Given, J.

2 I. The plaintiff is the originator of what is known as the “Fidelity Rupture Cure/’ covered by trademark in the patent office of the United States dated January 2, 1896. The cure consists, in part, at least, of the use of a fluid prepared by and obtainable only from the plaintiff at his place of business in Chicago. Dr. A. M. Worden, of Des Moines, Iowa, under some arrangement with the plaintiff, maintained an office in that city for the treatmlent of patients by this cure. The defendant’s minor son, A. D. Warner, was treated by Dr. Worden, and in the course of their acquaintance Dr. Worden urged upon him the purchase of the right to some territory in southwest Iowa in which to use said remedy, and highly recommended the cure as a sure and successful source of profit, A. D. Warner being a minor, Dr. Worden made efforts through him, and otherwise, to interest the defendant in the purchase of some territory. Neither of the Warners being a physician, and it being necessary to have a physician to administer the cure, Dr. Worden recommended Dr. Gibbon, of Beatrice, Neb., as a suitable person to administer the cure, and through his efforts these parties were brought together, and made an arrangement for opening an office in Red Oak, Iowa, young Warner to work at securing the patients, and Dr. Gibbon to administer the remedy. In some way that does not clearly appear Dr. Gibbon acquired the right to several counties in southwestern Iowa, and it was in consideration of the transfer to the defendant of an interest in these counties that the note in suit was given to Dr. Gibbon, in addition to five hundred dollars in cash paid him at the tiróte. Dr. Gibbon and Warner continued this business for a few months, when, Dr. Gibbon returned to Nebraska, and the office was closed. It seems probable that they abandoned the business because of the conclusion reached by Dr. Gibbon that the cure was not effectual. He says: “Think the fluid does not possess any curative qualities. I have not analyzed it, and do not know of what elements it is composed.” The note was indorsed as already stated, but seems to have been returned by the Merchants’ National Bank of Cedar Bapids to the plaintiff.

3 II. We now notice certain complaints made by the appellant of rulings on taking the evidence. He insists that Dr. Worden was a stranger to this transaction, and therefore the court erred in admitting in evidence conversations with him and his letters to the defendant and to his son, recommending the cure, recommending Dr. Gibbon, and also urging the purchase of territory. Just what Dr. Worden’s relations were to the plaintiff does not clearly appear. It is said that he was acting independently of the plaintiff, but it appears that he was promoting the plaintiff’s business. In the letter-heads used in the Des Moines office, Dr. Wray was designated as “originator,” Dr. Bansom as “specialist,” and A. M. Worden as “business manager,” and Dr. Worden was addressed by the plaintiff in correspondence as “manager.” Dr. Worden was not a stranger to this transaction, but in such privity to all the parties to it as to render the evidence objected to admissible.

4 Appellant complains of the admission of certain blank, forms of contract. We are inclined to think that they were proper as tending to show the manner in which this kind of business was done, and the terms offered in this instance; but, if not, they were surely without prejudice to the appellant.

5 It is complained that witnesses who had been treated with this cure were permitted to answer “whether [they] were cured or not.” It is argued that these were ignorant men, possessing no information or competency to answer the question, and that the answer is a conclusion. It certainly requires no special skill or learning for a man who has been suffering from a rupture to know whether or not- it has been cured; and to say that it has or has not been cured, is the statement of a fact. We discover no errors prejudicial to appellant in the rulings on taking the evidence.

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7 III. We next notice appellant’s complaints against the instructions. It is complained that the court said that the note in suit was, “immediately after its execution, transferred to A. M. Worden.” We think the evidence sustains this statement, but, if it were otherwise, it would be without prejudice to the plaintiff, as it tends to support his claim that he became purchaser before maturity. In the fourth and fifth instructions, the court, having said that the note passed into the hands of Worden shortly after its execution, added: 1 “This being true, if the note was obtained by false pretenses, made by said Worden, the note became invalid when it passed into his hands, even though it might have been valid in the hands of the original payee.” It is argued that there is no claim that Dr. Gibbon made any false-statements to induce the giving of the note, and that, therefore, if the note was valid in his hands, it was valid in the hands of Worden, and that, Gibbon and Worden being intermediary indorsers, there is no privity between them, or either of them, and the plaintiff. Gibbon and Worden are more than mere indorsers. Gibbon was ■ directly, and Worden indirectly, a party to the transaction in which the note was given. The argument ignores the fact that-the transaction was induced upon the representations of Worden as to the character of the cure. Measured by the relation of indorsers and indorsee alone', appellant’s contention is correct; but, as said, these parties were more than indorsers and indorsee in this transaction. We think, under the facts of the case,, there was no error in this instruction.

8 9 The court instructed that: “So abhorrent is fraud, however, in the law, that even a bona fide purchaser of a promissory note in the ordinary course of business, for a valuable consideration, before maturity, and without notice oi fraud, can only recover upon such note, if procured by fraud, the amount actually invested by him, with interest. If, however, you find that Worden procured this note by fraud from the. defendant, as plaintiff has failed to show how much he gave therefor, but has shown that, as respects the alleged fraud, he was a bona fide purchaser in the ordinary course of business, for a valuable consideration, before maturity, and without notice, your verdict should be for him for a dime or a dollar.” There is no evidence whatever as to how much the plaintiff gave Worden for this note, and the instruction is in harmony with section 3070 of the Code. The court said in the fourth and fifth instructions that the evidence shows without conflict that the plaintiff obtained this note in the ordinary course of business, for a valuable consideration, before maturity, and without any notice or knowledge of the .representations, if any, made by Worden for the purpose of obtaining it, and added that “the evidence is not conclusive either way as to whether he had notice of the alleged want of consideration for this note.” Appellant does not complain of this,^ but contends that the court submitted a contradictory proposition as to whether the plaintiff was an innocent purchaser. The further instructions were as to his knowledge of the want of consideration, not knowledge of the alleged fraud. We discover no errors in the instructions.

10 IV. Appellant insists that there'is not sufficient evidence to sustain the verdict. We think the jury were warranted in finding from the evidence that the Fidelity Kupture Cure is worthless, and of no value; therefore that there was no consideration for the note in suit. They were also warranted in finding that the plaintiff, when he took the note in suit, knew what the consideration therefor was. He was an originator1 of the cure, knew of what it consisted, and results from its use. True, he testifies: “The Fidelity Rupture Cure is valuable, and possesses merit, and is effective in curing rupture when placed in tbe bands of proper persons to administer tbe same, and no person or persons are permitted to use tbe same without paying me a valuable consideration. Tbe treatment has been in use. since 1891, and offices have been opened throughout tbe United States, and over 12,000 persons have been treated and cured by tbe method,” — yet no one of these is called to corroborate tbe statement, while A. D. Warner, who was treated by Dr. Worden, several others treated by Dr. Gibbon, whom Dr. Worden recommended, and one or two treated by Dr. Ransom, in Omlaha, each testifies that be was not cured by tbe treatment. We need not discuss tbe evidence further on this subject. Our examination of tbe record before us leads us to tbe conclusion that tbe judgment of tbe district court should be affirmed.