
    COMMERCE TRUST CO. v. MAILLOUX et al.
    (Opinion filed June 28, 1911.)
    Appeal from Circuit Court, Meade County. Hon. Joseph W. Jones, Judge.
    Action by the Commerce Trust Company against Louis Mailloux and others. From a judgment for plaintiff, defendants appeal.
    Reversed.
    
      Martin & Mason, for appellants. Harry P. Atwater, for respondent.
   HANEY, J.

This action is founded on one of three notes given by the defendants to McLaughlin Bros, and by them transferred to the plaintiff. The defendants and issues are the same as in the Union National Bank of Columbus, Ohio, v. Mailloux et al., 27 S. D. —, 132 N. W. 168, decided during the present term.

At the close of all the testimony in this case, plaintiff moved the court to instruct the jury to return a verdict in its favor for the amount due and unpaid on the note in controversy, for the following reasons: “ (1) That the undisputed evidence shows that the plaintiff became the purchaser and owner of the note before maturity, for value, in the due course of business and without any notice, actual or constructive, of any defense' against the same, claimed to exist on the paid of the defendant. (2) For the reason that the evidence in this case offered on the part of the defendant constitutes no defense against the note which can be, as a matter of law, available against the plaintiff. (3) That the evidence on the part of the defendant constitutes no counterclaim on the part of the defendant which can be available against this plaintiff. (4) That the undisputed evidence on the part of the defendant fails to establish either any defense which might be urged against McLaughlin Bros. (5) For the further reason that the misrepresentations or false statements or promises, if any, relied upon by the defendants went 'solely to the question of delivery of the note, or its nondelivery, and that the defendants had waived the failure of the man, Eklridge, to comply with these representations, having treated the note as a valid and binding note and properly delivered by the making of subsequent payments thereon.” The motion was granted, verdict returned, judgment entered, defendants’ application for a new trial denied, and this appeal taken.

For the reasons stated in Union National Bank v. Mailloux, supra, the facts alleged in the answer, established by uncontradicted evidence, constitute a counterclaim for damages to the extent of the unpaid balance of the note in suit, available in this action, provided the plaintiff is not a bona fide holder, and for the reasons stated therein the issue as to whether plaintiff is such holder should have been submitted to the jury. So the judgment of the circuit court must be reversed.  