Weaver v. Frantz

The opinion of the Court was delivered October 3d, 1881, by

Sterrett, J.:

The plaintiff having given in evidence, without objection, the defendant’s note at six months from July 26th, 1877, indorsed by the payees, II. W. Hogue & Co., was prima facie entitled to a verdict for the amount of his claim. To meet the case thus presented, the defendant relied substantially on the following grounds of defence: 1st, That the consideration of the note was the right to use and vend a patented invention, and the words “ given for a patent-right ” were ^either written nor printed on the face of the note, as required by the act of April 12th, 1872; that the plaintiff acquired the note with full knowledge of these facts, and in so doing violated that clause of the act which makes it a misdemeanor for any one to knowingly take, sell, or transfer any such note ; and hence he had no right to recover. This defence is grounded solely on the penal clause of the statute, and the principle invoked is, that a court of justice will not lend its aid to any one w’hose claim originated in the commission of a criminal act to which he was voluntarily a party. 2d, That as against the payees of the note he had a good defence in this, that they guaitmteed the patented machinery, for which- the note was given, to be of good quality, and to do certain work, but, after a fair trial, it proved to be worthless, and consequently the consideration of the note failed ; that plaintiff, having taken the note with knowledge of its consideration and the omission to comply with the requirement of the statute aforesaid, was not a bona fide holder, and hence the note in his hands was subject to the same defence that existed against the payees.

If the first ground of defence was sustained, the second of course became unnecessary, but the defendant had a right to introduce testimony bearing on each, and ask the Court to pass upon the questions of law arising therein.

The object of the act in requiring the words above quoted to “be prominently and legibly written or-printed on the face of the note,” was to give notice of its consideration, and, in connection therewith, make the note non-negotiable. With the latter purpose in view, it is declared that “ such note or instrument in the hands of any purchaser or holder shall be subject to the same defence as in the hands of the original holder.” The defendant contended that inasmuch as plaintiff* took the note with actual notice of the consideration, etc., he was at least in no better position than if he had been warned in the manner contemplated by the act; and hence the note thus in his hands was subject to the same defence that it would be in the hands of the payees. It cannot be doubted he had aright to present this defence for the consideration of the Court. If the case was afterwards submitted to the jury on the broader ground that the plaintiff had no right to recover at all, if in taking the note, he knowingly violated the penal clause of the statute, he has no reason to complain, because he did not except to the charge of the Court. We do not mean to intimate that an exception would have been of any avail. On the contrary, we think it would not. The charge of the learned judge is in full accord with the construction given to the act in Hunter v. Henninger, 37 Legal Intelligencer, 412, in which it is said: “ The ací o| April 12th, 1872, was intended to destroy the negotiable character of notes given in whole or in part for the right to make, use, or vend any patent invention, in order that the makers thereof might have the right to defend as web when said notes were passed off to third parties as when in the hands of the original payees. In furtherance of this intent, the act requires the indorsement, ‘given for a patent right,’ to be marked across the face of the note. . . . Without this, of course the innocent purchaser for value would not be affected. Not so, however, as to one knowing the consideration of a note given for a patent-right, for such a one is by the act guilty of a misdemeanor if he receives this kind of paper without having the words above stated written upon its face. It follows that if the plaintiffs, through Dreman, received the note in suit, knowing it was given for the right to vend or use the patent grinders, they received it in fraud of the statute, and were for that reason not entitled to recover.” This language is equally applicable to this case.

There was no dispute as to the consideration of the note, but there was some conflict of testimony as to whether the plaintiff, at the time he purchased it, knew it was given for a patent-right. That was a question of fact for the jury. Tt was fairly submitted to them under properly guarded instructions, and they found in favor of the defendant.

Erom what has been said in regard to the nature.and character of the defence, it is evident there was no error in admitting the testimony complained of in the first assignment. The order of its presentation was properly controlled by the Court, and this was all the plaintiff could reasonably ask. The second and third assignments are not sustained. In connection with other evidence in the case, the testimony complained of was not improperly admitted.

Judgment affirmed.