
    Richmond v. Diefendorf.
    
      (Supreme Court, General Term, Third Department.
    
    February 7, 1889.)
    Negotiable Instruments—Actions—Bona Fide Purchasers._
    In an action on a note by one who claimed to be a bona fide purchaser for value, the defense being that the execution of the note had been fraudulently obtained, plaintiff testified that he had paid for the note before maturity 50 per cent, of its face value, and exhibited drafts for such amount, payable to the order of the payee, and that he had borrowed the money to pay for the note of a bank of which he was cashier and a stockholder. He also testified that he had no knowledge that any defense was claimed to the note, and that he was acquainted with the maker. Held, in the absence of any evidence contradicting the statements of plaintiff, a verdict should have been rendered in his favor.
    Appeal from circuit court, Montgomery county.
    Action by Adelbert C. Richmond against John F. Diefendorf. Judgment was given for defendant, and plaintiff appeals.
    Argued before Learned, 0. J., and Landon and Ingalls, JJ.
    
      Matthew Hale and W. H. Steeribergh, for appellant. Z. 8. Westbrook, for respondent.
   Ingalls, J.

This action was brought by the plaintiff to recover upon a promissory note, of which the following is a copy: “$2,000. G-ouvernecjr, N. Y., Dec. 15, 1886. Thirty days after date I promise to pay R. T. Van Valkenburgh or bearer two thousand dollars, at Spraker’s National Bank, Canajoharie, N. Y., value received, with interest at the rate of six per cent, per annum. John IT. Diefendorf.” The plaintiff claims to have purchased the note of H. D. Henderson, before maturity, and to have paid therefor 50 cents on the dollar, and that such purchase was made by him at the National Bank of Canajoharie; that the only persons who were present at such purchase were the plaintiff, Howard Vosburgh, and H. D. Henderson, the person of whom the purchase was made. The plaintiff was examined as a witness in his own behalf, and testified upon his direct examination as follows: “Adelbert O. Richmond, being duly sworn in his own behalf, testified as follows: Am the plaintiff. Reside in Canajoharie, and am the cashier of the Canajoharie National Bank. Know the defendant. [Plaintiff’s Exhibit A shown witness.] Have seen that note before. First saw that note, December 17, 1886. It was at the office of the Canajoharie National Bank. It was brought there by Mr. H. D. Henderson. There was another note of the same amount, brought there at the same time. I purchased those two notes. Paid him $2,000 for the two notes by draft on Albany. Have the drafts I paid him at that time in my possession.” Witness produced four drafts of $500 each, drawn by the Canajoharie National Bank on the First National Bank of Albany, dated December 17, 1886, payable to the order of H. D. Henderson, indorsed by H. D. Henderson, and also by other banks. They are returned canceled. The four drafts were received in evidence, and marked “Plaintiff’s Ex. H to K, inclusive:” “$500. Canajoharie National Bank, Canajoharie, N. Y., Dec. 17th, 1886. Pay to the order of H. D. Henderson five hundred dollars. To First National Bank, Albany, N. Y. A. C. Richmond, Cashier. ” The other drafts, Exhibits I to K, inclusive, are of the same amount, same date, and all drawn on the First National Bank of Albany, N. Y. “At the time I bought those notes I had no knowledge or information of any kind as to the consideration of the notes, or what they were given for. Had no knowledge or information that the notes were given for a patent-right, or had anything to do with a patent-right. Had no knowledge or information whatever that it was claimed that the notes were obtained by fraud, or that there was any defense claimed to the notes, or either of them. Had known Diefendorf twelve to fifteen years prior to that transaction. Knew the fact that he was a farmer, and reputed to be the owner of a farm in this county, and believed him to be responsible.” The plaintiff, upon his cross-examination, stated, among other things, that he borrowed of the bank the money with which he purchased the two notes; that he was at the time the cashier of the bank, and was also a stockholder and director thereof; that he had been acquainted with the defendant about 15 years, and that defendant owned a farm, and he supposed him to be responsible; that he had a conversation with Vosburgh the morning of the day the notes were purchased, and before he saw Henderson; that he met Vosburgh in the street, and he informed the witness that the notes could be purchased, and at what price. Plaintiff further testified that he made no inquiry in regard to Henderson’s business, nor as to the notes, nor in regard to the business relations between Henderson and Diefondorf. According to the plaintiff’s evidence, he purchased the note in question without any information as to what it was given for, and without any knowledge that fraud was connected with the execution of the note. The plaintiff was not impeached, or even contradicted, by any witness in regard to the facts to which he testified. The evidence, at most, only tended to cast suspicion over the transaction. The real question is whether the evidence justified the jury in discrediting the testimony of the plaintiff in regard to his good faith in purchasing the note, for, if the plaintiff’s version of the transaction had not been rejected by the jury, no such verdict could have been rendered by them. The circumstances which tended to create such suspicion in regard to the bonafldes of the transaction, at most, called upon the plaintiff to explain his purchase of the note, and he accepted the requirement, and, if his statement in regard to such purchase is to be believed, and we perceive no reason why it should not be, the plaintiff must be regarded as bona fide purchaser of the notefor value. Kelly v. Burroughs, 102 N. Y. 93, 6 N. E. Rep. 109; Dalrymple v. Hillenbrand 62 N. Y. 5; Chapman v. Rose, 56 N. Y. 137; Story, Bills, (3d Ed.) § 188’ Hart v. Potter, 4 Duer, 458. The case of Vosburgh v. Diefendorf, decided by this court, and reported in 1 N. Y. Supp. 58, is not, we think, in conflict with the view thus taken. In that case Vosburgh, the plaintiff, was not examined as a witness, and consequently made no explanation in regard to the good faith of his purchase, and the jury were left to infer, from the evidence adduced, whether or not he purchased the note in good faith, and without notice of the fraud connected with its execution by the defendant. The court held that the circumstances of that case were such as to call for explanation. Seymour v. McKinstry, 106 N. Y. 240, 12 N. E. Rep. 348, and 14 N. E. Rep. 94. It would seem that the plaintiff Vosburgh was the only person who could satisfactorily make such explanation, and he omitted to go upon the stand as a witness, and state the facts in regard to his purchase of the note, and what knowledge he had acquired, if any, in regard to the consideration of the note, and the circumstances which attended its execution. In that case Justice Landon, at page 60, remarks: “The fact that the plaintiff paid value for the note only maintains one part of the burden the law casts upon him. The remaining part (his good faith) is not established by proof that he paid value; certainly not by proof that he paid half value. We must not confound this case in which the defendant, by his evidence, if the jury should believe it, has cast the burden of proving good faith upon the holder of the note, with cases in which the burden rests upon the defendant to impeach such good faith.” In the case at bar, the plaintiff accepted the burden, and as a witness explained the transaction in regard to the purchase of the note in suit, and testified to his good faith in making such purchase. The missing link in Vosburgh v. Diefendorf seems to have been fully supplied in this case by the testimony of the plaintiff. We are persuaded that the plaintiff established a case at the trial which entitled him to recover upon the note as a bona fide holder thereof for value. Doubtless the jury concluded that the defendant had fallen into the hands of sharpers, and had been swindled by them, and, upon evidence which was sufficient barely to create a suspicion in regard to the good faith of the plaintiff's purchase, virtually disregarded the plaintiff’s evidence in their zeal to protect the defendant, and rendered the verdict which they did. We are convinced that the judgment cannot be sustained without establishing a precedent which will impair confidence in commercial paper which should be protected. The judgment should be reversed, and a new trial ordered, with costs to abide the event of the action.

Learned, P. J., concurs.

Landon, J.

This case is substantially the same upon the facts as the case of Vosburgh v. Diefendorf, 1 N. Y. Supp. 59, except with respect to the testimony affecting the good faith of the plaintiff in the purchase of the note. He bought it before maturity for one-half its face value. The jury have found, upon evidence sufficient to uphold the finding, that the note was procured from the maker by the fraud of the payee, and was sold to the plaintiff by one Henderson, who was cognizant of the fraud. In the Vosburgh Case, Vosburgh, the plaintiff, offered no testimony touching his own good faith in the purchase of the note then in suit. That note was made at the same time as this note, and as a part of the same fraud practiced upon the defendant. The present plaintiff was his intermediary in the purchase of the note, and we held that Vosburgh could not establish his own good faith by showing that the agent whom he procured to purchase the note did so in good faith, for he might have interposed him to protect himself. Bichmond, who was the agent in that case, is the plaintiff in this. His testimony is to the effect that he had no knowledge or informatiop respecting the consideration of the note, or that there was any claim by the maker that the note was procured by fraud, or that any claim of defense existed respecting it. He was cross-examined at great length, and we do not discover that any evidence was elicited or fact shown tending to impeach his statement. Ho other testimony is adduced tending to show that any fact was brought to his knowledge which would naturally give him any intimation of the fraud practiced by the payee of the note upon the defendant. It is true that he is interested; that he paid half value; that he knew that eight other notes of the same maker, to the amount of $8,000, were outstanding, $4,000 of which were held by the bank of which the plaintiff was cashier; that he knew little of Henderson, the holder of the note in suit; did not know where he lived, what his business was, or his character. The plaintiff asked nothing about the consideration of the notes. There is not any ground to suppose that he knew any fact which he did not disclose. Ho suggestion is made of any such knowledge. It is true that thefact that so many of the defendant's notes were outstanding and offered for sale by a stranger was unusual. Did that circumstance imply that the defendant had been the victim of a fraud? Why should it? The law does not presume fraud. The circumstances possibly implied an unusual expansion of his credit. But, when a person gives a series of notes, the presumption naturally is that he has done so in order to benefit himself, not that he has been victimized by swindlers. The law exacts from the plaintiff good faith; that is, if he has notice of the fraud practiced upon the defendant, he shall not volunteer his aid in making the fraud successful, and thereby become parliceps criminis. It is reasonaable that he who has the fruits of fraud or crime in his hands, even though they be mercantile paper, should show that he came honestly by them. His honesty or good faith is shown when the evidence excludes the inference of his dishonesty. He may be negligent, he may be suspicious, but the law does not exact active vigilance with respect to facts extrinsic of the paper. It simply requires that he shall have no notice, actual or constructive, of the fraud, and he is not bound to institute inquiry, unless he is advised of some fact, as distinguished from a mere surmise of a fact, tending to impair the character of the paper. Chapman v. Rose, 56 N. Y. 137; Welch v. Sage, 47 N. Y. 143; Seybel v. Bank, 54 N. Y. 288.

If the plaintiff had paid full value for the note, in the usual course of business, before maturity, that alone would be prima facie proof of his good faith. Dalrymple v. Hillenbrand, 62 N. Y. 5; Cowing v. Altman, 71 N. Y. 435. Whbn he pays half value, or substantially less than its face value, clearly the transaction implies some defect. It may impeach-the responsibility or integrity of the maker of the paper, or it may impeach the genuineness of the paper itself. Clearly, the plaintiff should explain what occasions this large disparity between the nominal value and the actual price. Huff v. Wagner, 63 Barb. 215, 235. Here he made the explanation to the effect that the fact.that the defendant bad issued so many notes, some of which the plaintiff’s bank had purchased, led him to desire to get this one which first fell due, and to try to purchase it at a reduced rate. Yotbing was disclosed or shown touching the fraud practiced upon the defendant, and, as the case stood, the plaintiff was shown to be a bona fide holder of the note to the amount of his payment for it. He'was entitled to have the verdict directed for that amount. Moore v. Ryder, 65 N. Y. 438. Judgment reversed, new trial granted, costs to abide the event.  