
    Walter Hurst, Appellant, v. Herman F. Lee, Respondent.
    Second Department,
    March 10, 1911.
    Bills and notes — defenses — fraud of payee — failure to prove fraud — rights of holder in due course.
    The maker of promissory notes fails to sustain the defense that he was induced to make the notes, which were payable to the order of a corporation, by fraudulent representations of the payee’s president that certain goods had been shipped to him whereas some of them were not shipped or delivered, where it does not appear that in making the notes he relied upon the representations made on behalf of the payee, but relied instead upon the personal guaranty of the president.
    A transferee of promissqry notes not bearing interest who paid the face value thereof shortly before maturity, in reliance on the statement of his brother in-law, the president of the payee, that they were valid and collectible, is a holder in due course, taking the instruments free from equities between the original parties, if it do not appear that he participated in a plan to transfer the notes to a holder in due course so that they should be enforcible and there is no proof that he had any knowledge or information- as to defects in title.
    Appeal by the plaintiff, Walter Hurst, from two judgments of the Municipal Court of the city of Hew York, borough of Brooklyn, in favor of the defendant, rendered on the 11th day of April, 1908.
    
      Macintosh Kellogg [.Alfred G. Petté with him on the brief], for the appellant.
    
      Charles Adkins Baker, for the respondent.
   Thomas, J.:

This action is upon two notes, each for $200, given by defendant to the General Metals Manufacturing Company.' The defense is that these notes and three others, all aggregating $1,000, were procured from the defendant upon a fraudulent representation made by Cook, the company’s president, that certain goods and metals had been shipped by the company to the defendant, whereas, as alleged, such goods contracted to be delivered were not shipped or delivered. On Hovember 14,1906, the company agreed to manufacture and deliver to the defendant some 10,000 stapling tools at a specified price, and for the purpose of their manufacture defendant und took to furnish and did furnish the company with tools an ’ Thereafter, in June, 1907, the company, through financial embarrassment, shut down its works, and after much negotiation an agree-, ment was made between the parties for the return of the tools and dies and other material, for which plaintiff agreed to give and did give the five notes mentioned. This contract recites:

Whereas the party of the first part have on hand on their premises at Scranton, Penn., a quantity of steel parts as per schedule furnished, be the said quantities named on said schedule more or less, said schedule having been made in good faith and representing all the parts in possession of party of the first part at the time same was made, all of said parts going to make the Pin Stapling tool, and whereas the said party of the first part also have in its possession at the same place all the special tools, dies, holders, etc., used in manufacturing said Pin Stapling Tool;

“ It is agreed, that the party of the first part will sell, and the party of the second part will purchase, all of said materials, and tools belonging to the said party of the first part, for the sum of one thousand ($1,000.00) dollars, to be paid by five notes of $200.00 each becoming due on the first days of October, November, and December, 1907, and January and February, 1908.”

It was further agreed that performance of this contract should constitute a settlement of all the claims between the parties. Although the company’s president represented that the tools had been shipped, the defendant would not make the settlement without the personal guaranty of Oook that everything had been shipped, which he did in writing. An inventory is returned showing a very large number of items. Defendant gave evidence showing that some of the tools were not returned. There is no evidence that plaintiff relied upon the representation, but it rather appears that he did not rely thereon, but upon Cook’s personal guaranty. Nor is there evidence that Cook knew that all the parts were not shipped. Indeed the contract seems to indicate that he had made a good faith attempt to return all that were at the shop, where the defendant had earlier been for the purpose of examining what was on hand. Hence the defendant has not made proof of elements necessary to sustain his defense of fraud. It is inferable evidence that after the parts were received there were nations between defendant and the company, and that, in view of an expected defense to the notes, Cook transferred them to his brother-in-law, the plaintiff, with the indorsement of the company. This transfer was about ten days before November 1,1907. The notes were due severally on November 1 and December 1,1907. Plaintiff, as he testified, paid $400 for the notes, relying upon the representation of Cook that the notes were good and would be paid at maturity. He made no inquiry as to the transaction between the company and the defendant and had no knowledge of the general condition of the company’s business. Although he had discounted notes, he had not done so for a couple of years before the time in question. It is apparent that he relied upon the representation of Cook that the notes were valid and that the purchase was for the purpose of helping his brother-in-law to the money. He paid full value for the notes, and, indeed, as they did not draw interest, he would be without the interest on his money between the time of the purchase and the maturity of the notes. While it is inferable that Cook’s intention was to place .the notes in the hands of a bona fide holder and so preclude a defense to them, it does not appear that plaintiff participated in such motive or that he had any knowledge or information that there was any defect in the title of the notes or any defense thereto. Had the defendant proved that the notes were obtained by fraud, the burden would have rested on the plaintiff to show that he was a bona fide holder, that is, he must show under what circumstances and for what value he purchased them. (American Ex. Nat. Bank v. New Nork Belting, etc., co., 148 N. T. 698,703 ; Vosburgh v. Biefendorf, 119 id. 357, 365.) In the present case the plaintiff paid the amount of the face of non-interest-bearing notes, and so lost some days interest. He is criticised for paying too much. In Ganagoharie Nat. Bank v. Biefrndorf^Z N. T. 191) the purchaser was deemed to have paid too little. The circumstances in that case showed such gross neglect in avoidance of inquiry, such absence of usual banking methods and expectable conduct, and such blind and unauthorized confidence that the transaction itself evidenced bad faith. In the case at bar there was lack of inquiry into the circumstances out of which the notes arose, but the purchaser had the assurance of the man, who was bound by honor to tell him the truth. If it be urged that he had no right to rel

such assurance,, it may be answered that it is not mere but gross negligence, that indicates bad faith. (Canajoharie Nat. Bank v. Diefendorf, supra, 202.) Gross negligence is equivalent to willful ignorance, and willful ignorance may evidence bad faith. Negotiable paper is endowed witli the capacity for transfer, and it is not the purpose of the law that, when passing from hand to hand, its origin shall be scrutinized at the peril of non-payment. Otherwise its valuable quality is impaired or lost. The requirement is that the transfer shall indicate a purchase with honest intent and belief that the paper is the evidence of an honest indebtedness. The confiding purchaser is not condemned, but the purchaser who is shown not to have bestowed an honest credible confidence. Negotiable instruments are largely purchased upon representations of the sellers or advisers, or the reputation of the makers, or other inducement that justifies belief. Careful inquiry into the primary transaction is exceptional. In the present case I find nothing incredible in the honest purchase of these notes by plaintiff upon his brother-in-law’s representation of their validity. It is easy to assert that it was a mere unsubstantial and colorable transfer. But honesty is a presumption, and a well-appearing witness fairly testifying is not to be declared untruthful upon mere suspicion. The technical defect in his evidence is that he omitted to state that he had no knowledge of the transaction out of which the notes came, or of any fraud or invalidity in their inception or defense to their payment.

The judgments should be reversed and a new trial ordered, costs to abide the event.

Jenks, P. J., Hirsohberg, Carr and Rich, JJ., concurred.

Judgments of the Municipal Court reversed and new trial ordered, costs to abide the event.  