Kirby v. Berguin

Citations

• 15 S.D. 444
• 90 N.W. 856
• 1902 S.D. LEXIS 49

Syllabus

<p>1. An objection to testimony on the ground that it contradicts and varies the terms of a written instrument is unavailable where the instrument itself is not in evidence. 1</p> <p>1. In an action on a note, it appeared that a lightning-rod dealer, acting under an assumed name, procured defendant’s signature to an order for rods, representing that they would cost only $20. Subsequently, in defendant’s absence, two of the dealer’s employes put up the rods; and next day they returned with what they claimed to he defendant’s order, and by representing that the order was for $187, and was negotiable, and that they would negotiate it, so that defendant would have to pay the full amount, unless he did as they directed, they procured his signature to a note for $140 — the note in suit— which the dealer transferred to plaintiff. Held, that the evidence of the circumstances leading up to the execution of the note was admissible to show a fraudulent conspiracy between the lightning-rod dealer and his employes to obtain defendant’s signature to the note.</p> <p>:3. .The evidence was sufficient to sustain a finding of the jury that the . note was procured by a fraudulent scheme, beginning with the first solicitation of the order for the lightning rods.</p> <p>4. Where a negotiable instrument is shown to have been obtained by fraud or duress, the burden is on a subsequent holder to show that he was a bona fide purchaser for value, without notice.</p> <p>5. Where a note was executed in compromise of a merchandise order ■ which was obtained by fraud, and which was a part of a fraudulent scheme to secure the note — the maker’s signature to the note being obtained by threats of forcing him tó pay the full amount of the order — the execution of the note was not a waiver of the right to set up the fraud as a defense against the obligation represented by the note.</p> <p>■6._ In an action on a negotiable note, it appeared that a lightning-rod dealer, through a conspiracy with two of