Whittlesey v. Drake , 43 Idaho 623 ( 1927 )

Appellant sued upon a promissory note given by defendant Drake to Northwestern Investment Company, alleged purchased by her as a holder in due course. The appeal is from a judgment rendered on verdict for the defendant.

The execution of the note was admitted, but as an affirmative defense the answer pleads a conditional delivery and failure of consideration, which, in the hands of the original holder, would have been a good defense; and, as it pleads also knowledge and notice of these facts by the plaintiff, appellant's first assignment of error, in admitting evidence of the affirmative defense over objection, is, therefore, not well taken.

Appellant assigns as error denial of her motion for a directed verdict upon the ground that "there is no evidence here to contradict the good faith of the purchase on the part of the plaintiff," and contends that ". . . . There is no circumstance and no evidence tending to contradict the evidence of the plaintiff to the effect that she is a holder in due course . . . .," and that the court therefore erred in allowing the matter to be submitted to the jury.

We have thoroughly examined the evidence. The respondent has submitted no brief. We have thus been deprived of any help in support of respondent's case. There is no evidence to support a verdict that the plaintiff did not take the note in due course, nor is there shown any notice to the purchaser of either facts constituting the equities or defenses, or such circumstances that her acts in taking the paper amounted to bad faith. (First Nat. Bank v. Pond, 39 Idaho 770, 230 P. 344;Winter v. Nobs, 19 Idaho 18, Ann. Cas. 1912C, 302, 112 P. 525; 8 C. J., p. 988, sec. 1295.)

The court therefore erred in not directing a verdict for the plaintiff.

The judgment is reversed, and the cause remanded with instructions to the trial court to enter judgment for plaintiff. (Exchange State Bank v. Taber, 26 Idaho 723, 145 P. 1090.) Costs to appellant.

Wm. E. Lee, C. J., and Budge, Givens and T. Bailey Lee, JJ., concur.