Campbell v. Rusch

1. EVIDENCE: conclusions : opinions. The conclusions or opinions of a ■witness, drawn from or based upon the language of a written instrument, are not admissible, when such language has no peculiar meaning which would render it ambiguous, or unintelligible to those unacquainted with such meaning, 2. Same. The general rule is, that the evidence of the witness must be confined to facts, from which the jury will, under the instructions-of the court, draw conclusions. 3j Same: exceptions, when the matters in controversy partake of the nature of a science or trade, the opinions of experts are admissible in evidence. 4. Promissory note : defense. An equity arising in favor of the maker and against the payee of a promissory note, after the transfer of the note, cannot be interposed as a defense in an action thereon by the in-dorsee.

Appeal from Scott District Court. Action on. a promissory note, dated March 5th, 1857, due in seven months, for $200, payable at the banking house of Nickols, Campbell & Co., to the order of N. Oorrona, transferred before maturity to plaintiff, and containing these words: “and we also agree that the holder hereof may enforce, delay, or extend the payment of this note at pleasure, in according to contract.” On the same day the parties to the note entered into a contract, in substance as follows: Rusch bought of Gorrona two hundred bushels of barley, to be delivered in that month, at two dollars per bushel, one-half to be paid for upon the delivery, and the other in the fall, when Rusch delivered his new crop of barley, all of which, he undertook to deliver to Oorrona, at Davenport, in good merchantable order, at one dollar per busbel; upon a failure to do which,he was to pay fifty cents for each bushel not thus delivered. The defendant, in Ms answer, sets up this agreement, and avers that in the year 1857 he raised two thousand bushels of barley, which he was ready and willing, and offered to deliver to Gorrona, but that he refused to take the same, at the time and in the manner provided for in said agreement; that barley was then worth but sixty-five cents per busbel; that plaintiff took the note with notice of this contract, and that defendant, by the refusal of said Corrona to comply with the contract, has been damaged, &c. Trial and judgment for defendant. I. The court should have construed the language of the note, and instructed as to the law thereon. Whether there was or was not sufficient on the face of the note to put the purchaser on his inquiry, should not be left for the determination of the jury. 1 Gxeenl. Ev. section 277 and note 2; 2 lb. 28a; The-State of Georgia v. Brailsfield, 3 Dallas (U. S.) 1; JEtting v. The Bank of the United States, 10 Wheat. (U. S.) 59; Harris v. Sumner, 2 Pick. 129, 133. II. The opinions of professional witnesses or experts are not admissible to show the legal effect, construction, or interpretation of a written instrument. 1 Grreenl. Ev. section 441, 1 Phill. Ev. 290; Brothon v. Baughman, 2 Stark. R. 259; Wogan v. Small, 11 S. & R. 141; Morehouse v. Matthews, 2 Com. 514; Giles v. O’Toole, 4 Barb. S. 0. 261; 2 Bouv. Inst. 462. HI. The court should have instructed the jury that if at the time the note was transferred no equities existed between the maker and payee, no subsequent equities will effect the rights of the indorsee. Turnip v. Gilchrist, 1 Sand. S. C. 53; Graves v. Woodbury, 4 Hill 559; Mead v. Gillett, 19 Wend. 397; 1 McMullen 258; Robinson v. Lyman, 10 Conn. 30, and the numerous authorities therein cited; Stedman v. Jillson, 10 Conn. 55; Story Prom. Notes, sections 178-180, 197 and notes and cases therein cited; Oldham v. Wallace, 4 Pike 559. IV. The defendant having failed to show actual notice to the indorsee of the note, of any equities existing at the time of the indorsement, before maturity, it was improper to permit evidence to go to the jury impeaching the consideration. Robertson v. Breedlove, 7 Porter 541; Taylor v. Mather, 3 Term R. 83; Brown v. Bavis, 7 lb. 630; Burroughs y. Moss, 10 Barn. & Ores. 558; Chit, on Bills 244; Baker v. Arnold, 4 Caines 279 ; Braman y. Hess, 13 John. 52 ; Mull-ford y. Shepard, 1 Scam. 563; Carlyle y. Wishart, 11 Ohio 172, and cases there cited; Himes v. Smith, 4 Shep. 177; Bondv. Lockwood, Ala. 674; Linsley v. Beal, 2 Kelley (Georgia) 154; O’Hara v. The Bank of Hawkinsville, 2 Ala. 367; McDonald y. Husted, 3 lb- 297; Beal y. Wainright, 6 lb. 156; Prior v. Jacocks, 1 John. C. 169; Sanford y. Michels, 4 John. R. 224; Johnson y. Bridge, 6 Cow. 693 ; 10 Barn. & Ores. R. 558; Story on Bills 244; Chit. Bills 220. The consideration of a promissory note indorsed before maturity cannot be inquired into in an action between the bona fide holder and maker, unless it is void in its creation. Baker v Arnold, 3 Caines 279; Vallet y. Parker, 6 Wend. 615; Woods y. Hynes, 1 Scam. 103; Byles on Prom. Notes 98, (marginal) and note. I. In any case in which the indorsee takes the paper under circumstances which might reasonably put the holder upon inquiry, and create suspicions that it was not good, he takes it at his peril, and the maker will be let in to his defense, whether the notes were due or not, at the time of the transfer to the indorsee. Kent. Ill, 83. Hunt v. Sand-ford § Cook, 6 Yerger 387; Hall v. Hale, 8 Conn. 336; Ayer y. Hutchinson, 4 Mass. 370, 372; Gill v. Cubit, 10 E. C. L. 154; Down v. Hailing, 10 E. C. L. 347; Egan v. Threlfel, 16 E. C. L. 237; Cromwell y. Winchester, 1 S. & R. 183. II. It is a well established principle, that whatever is sufficient to excite attention, and put the party on his guard, and call for inquiry, is notice of everything to which such inquiry might have led. When a party has sufficient information to lead him to a fact, he shall be deemed conversant of it. Carr v. Hilton, 1 Curtis 393; The Ploughboy, 1 Gallis C. O. R. 41; Stafford v. Ballou, 17 Vermont 320; Peters y. Goodrich, 3 Conn. 146; Booth v. Barnum, 9 Conn. 286; Green v. Slayter, 4 John. Cb. R. 88; Sigourney v. Munn, 7 Conn. 333. III. Whether there has been, in any particular case, reasonable diligence used, is a mixed question of law and fact, to be decided by the jury, acting under the direction of the judge, under the particular circumstances of each case. The judge is to inform the jury, as to the degree of diligence, or care, or skill which the law demands of the party, and what duty it devolves on him, and the jury are to find whether that duty has been done. 1 Greenleaf, section 49, page 67, and cases cited. IV. The note sued on is in such unusual form, that a careful, prudent business man, would at once be led to inquire as to the meaning of the words “in according to contract” appearing on the face of it, and the question, as to whether the note is in such an unusual form as to put a man on Ms inquiry, is a question of fact for the jury, or at most a mixed question of law and fact, to be left to the jury under the instruction of the court. Cromwell v. Winchester, 1 S. & R. 183; JEgan v. Threlfal, 16 Eng. C. L. 237; Strange v. Wigny, 6 Bingham 677, 4 Moore & Payne 470; Barlyv. Crockford, 25 E. C. L, 116; Snow v. Peacock, 13, E. C. L. 25; Beck-with v. Carrol, 13 E. C. L. 44; Bradbury v. Palmouth, 18 Maine 64. V. On questions of science, skill or trade, or others of like kind, persons of skill, sometimes called experts, may not only testify to facts, but are permitted to give their opinions in evidence. 1 Greenleaf, section 440. If these general principles are true, we think they will decide every point in this case.