Balcom v. O'Brien

Citations

• 13 S.D. 425
• 83 N.W. 562
• 1900 S.D. LEXIS 167

Syllabus

<p>1. Defendant executed a note to F, Thereafter suit was brought on the same by B., to whom it bad been indorsed, the indorsement purporting to be by N. F., F.’s attorney in fact. On tbe trial, plaintiff offered the note in evidence without objection, and at the conclusion of plaintiff’s evidence defendant moved the court to direct a verdict in his favor, for the reason that there was no evidence to prove that Ñ. F. was tbe attorney in fact of F. Held that, as the note and indorsement were admitted in evidence without objection, defendant could not thereafter be heard to object that there was no proof that N. F. was the attorney of the payee.</p> <p>2. Where, in an action on a note, which had been indorsed by the payee to plaintiff, the indorsement reciting that it was made by an attorney in fact of the payee, and plaintiff’s attorney testified that he received the note from plaintiff, and on cross- examination testified that he supposed payee was the owner of the note, but when he came to look up the note he found that the payee was not,and never-had been,since it was immediately transferred to plaintiff, and being asked how he knew such facts, stated he knew them by reason of correspondence he had with the payee and the plaintiff, although such evidence was clearly hearsay, not having been objected to, it was not error to refuse to direct a verdict for defendant on the ground that there was no evidence that plaintiff was th-e owner of the note.</p> <p>3. Where defendant, through one D., executed and delivered a note to the payee thereof, and thereafter, in an action on the note by an indorsee of the payee, defendant claimed that he had paid the money to D., and D. testified that he deposited the money in his bank to defendant’s account, and evidence was undisputed that D. was not at that time, and never had been, either the agent of the plaintiff or 'defendant, it was proper to direct a verdict in favor of plaintiff, since the evidence showed no payment.</p>