
    COSMOPOLITAN STATE BANK v. ALFRED SOMMERVOLD AND ANOTHER, ETC.
    
    February 16, 1923.
    No. 23,272.
    New trial because error to direct verdict.
    New trial granted because conflicting evidence as to whether plaintiff was an innocent holder of the note in suit, for value, in due course and without notice, made it improper to direct a verdict for defendant. [Reporter.]
    Action transferred to the district court for Dakota comity to recover $752.29 upon a promissory note. The case was tried before Jo'hnson, J., who at the close of the testimony denied plaintiff’s motion for a directed verdict and directed a verdict in favor of defendant. From an order denying its motion for judgment notwithstanding the verdict or for a new trial, plaintiff appealed.
    Reversed and new trial granted.
    
      Jesse B. Calmenson, for appellant.
    
      Jesse Van Valkenburg, for respondent.
    
      
       Reported in 191 N. W. 1000.
    
   PER CURIAM.

Without consideration, and, perhaps, through fraudulent practices, defendant, an alleged incompetent, signed blank promissory notes at the request of one Louis Wurzinger, who filled in the amounts and his name as payee. The day the notes were so signed, or the day thereafter, Wurzinger disposed of one of them to plaintiff, indorsing the same without recourse. The note was for $750, due in 4 months, and drawing interest at 10 per cent. The action is on this note, and the defense was that the note had been obtained iby fraud, without consideration, and that plaintiff had full knowledge thereof when it 'became the holder. The court directed a verdict for defendant, and denied plaintiff’s motion in the alternative for judgment or a new trial. Plaintiff appeals.

Since the majority of the court deem a new trial unavoidable, we refrain from discussing the evidence. It is enough to .say that, as the case stood when the testimony was closed, the only question of fact for the jury was whether plaintiff had established that it was an innocent holder of the note, for value, in due course, and without notice. Plaintiff was not entitled to a directed verdict, for there was abundant room for a finding that it was not. At the same time, there was evidence that plaintiff -bought the note ■before it was due, and gave $500 in cash, and Wurzinger’s past due note of $200 therefor, and, before so doing, inquired -of a banker with whom defendant did business as to his responsibility. This and other testimony made plaintiff’s claim of being innocent purchaser for value in due course a question for the jury.

Reversed and a new trial granted.  