
    STONE, Appellant, v. MAYNARD, Respondent.
    (No. 3,617.)
    (Submitted February 16, 1916.
    Decided March 9, 1916.)
    [156 Pac. 418.]
    
      Appeal and Error—Conflict in Evidence—Verdict Conclusive.
    
    1. Where the evidence on the question at issue was conflicting, the verdict of the jury will not be disturbed on appeal.
    
      Appeal from District Court, Madison County; W. A. Clark, Judge.
    
    Action by A. L. Stone against Elbert A. Maynard and others. From the judgment and an order denying him a new trial, plaintiff appeals.
    Affirmed.
    
      Messrs. Lew. L. and E. J. Callaway, for Appellant, submitted a brief; the former argued the cause orally.
    The holder of a note is presumptively the owner, and his possession is presumptive evidence of title until rebutted by the defendant. (Whiteford, v. Burckmyer, 1 Gill (Md.), 127, '39 Am. Dee. 640; Pomeroy’s Code Remedies, 128 et seq.; Palmer v. Nassau Bank, 78 111. 380; New Orleans Canal & Banking Co. v. Bailey, 18 La. Ann. 676; 2 Randolph on Commercial Paper, 707; Daniel on Negotiable Instruments, 1191, 1192b; Story on Promissory Notes, 381.) And until this presumption is overcome, plaintiff is a bona fide purchaser for value, has a right to sue, and is the real party in interest. (Klein v. Buckner, 30 La. Ann. 680; Robertson v. Dunn, 87 N. C. 191; Desser v. Doran, 41 Iowa, 468; Derrick v. Swomley, 56 Md. 439; McCann v. Lewis, 9 Cal. 246.) As the defendant had no defense to the note in the hands of a bona fide holder, it was of ño importance to him who owned the note at the time of the suit, provided he be not liable to a second suit foundéd on the samé claim.
    
      Mr. M. M. Duncan, for Respondent, submitted a brief and argued the cause orally.
    Under section 5907, Revised Codes, the burden was on the plaintiff to show that he acquired the title to the note as holder in due course, and this, too, even though he produces testimony tending to show or, if true, showing the facts necessary to constitute him a holder in due course, and if the defendant offers no rebuttal to such testimony, it becomes a question for the jury and not one for the court. (Gottstein v. 'Simmons, 59 Wash. 178, 109 Pac. 596; Leavitt v. Thurston, 38 Utah, 351, 113 Pac. 77-79; Union Investment Co. v. Rosenzweig, 79 Wash. 112, 139 Pae. 874; Richmond v. Tacoma R. & P. Co., 67 Wash. 444, 122 Pac. 351; Barry v. Danielson, 78 Wash. 453, 139 Pae. 223.)
   MR. JUSTICE BANNER

delivered the opinion of the court.

The complaint alleges that on March 11, 1911, the respondent, Maynard, made and delivered to the defendants Grant & Howard his certain promissory note for $1,500, payable in six months from its date, with interest and attorney’s fees; that said note was thereafter, and on May 5, 1911, indorsed to the appellant, ■Stone; that the same has not been paid; wherefore judgment is demanded accordingly. The answer, reply and evidence presented were such that the vital and decisive question to be determined by the jury, and the only one submitted to them, was whether the appellant, Stone, was the holder for value at the time the action was begun, to-wit, on September 28, 1912. Their finding was negative, and this, necessitating the judgment which was entered, is challenged as contrary to the evidence, as well as to the law given in the court’s instructions. The respondent’s position was that the State Bank of Dillon, and not the appellant, had the note, and that it was held by the bank for collection, and not as owner. We think the conclusion of the jury cannot be disturbed. The appellant is president, and at the time of the transaction involved was cashier, of the State Bank of Dillon. He testified in chief that he took the note as collateral to one executed and delivered by Grant & Howard for the balance of a pre-existing debt due to him, and the bank bookkeeper says the note does not appear on the bank records as it should if it belonged to the bank. Conceding the sufficiency of this prima facie to establish appellant as bona fide holder, the evidence elsewhere shows: That the note of Grant & Howard to which appellant claims the note in suit was taken as collateral runs to the State Bank of Dillon, but bears in lead pencil the indorsement, “State Bank of Dillon 8—30.” That in September, 1911, two notices on the regular printed form of the State Bank of Dillon were sent to the respondent, stating, in substance, that the bank held the note in suit for collection and demanding payment thereof. That on September 30, 1911, a letter under the caption of the bank was sent to the respondent, signed “A. L. Stone, Cashier,” wherein it is said: “We have had no response to our notices. * * * We will place this note in the hands of an attorney. * * * We trust that you will promptly remit us,” etc. That on October 7, 1911, there was sent to the respondent by Edmond J. Callaway, counsel of record for this appellant, a letter to the effect that the State Bank of Dillon had placed said note in his hands. That on February 2, 1912, a letter under the caption of the bank was sent to the respondent, signed “A. L. Stone, Cashier,” wherein .it is said: “We have been waiting for you to make remittance. * * * We have not, however, had even a letter. * * * The company have sent us on your certificate of stock. * * * We trust you will pay,” etc. That on February 9, 1912, the State Bank of Dillon brought suit on this note, the complaint alleging its corporate capacity and its ownership of the note in virtue of a sale and assignment to it by Grant & Howard on May 5, 1911, and being verified by the oath of the appellant as .its cashier. That, respondent having, through his attorney, M. M. Duncan, caused a notice to be served upon Mr. Callaway, as attorney for the bank, of a demand for an inspection of its books and papéis relative to said transaction, Mr. Callaway on April 23, 1912, wrote to Mr. Duncan waiving all objections to such inspection, but suggesting the futility of it, “as this was a ‘side transaction.’ Guess you know they do it occasionally. * * * The matters do not themselves appear on the ‘bank records’ so called.” That thereafter the bank’s action was dismissed, and this suit was begun. That in the original complaint in this suit, which is verified by the appellant, it is alleged that Grant & Howard, on May 5, 1911, for a valuable consideration, sold and transferred this note to him, and he has ever since been the owner and holder thereof, but in the amended complaint in this action these allegations are omitted, their place being taken by the simple averment of an indorsement. It is quite true that explanations are offered for these inconsistencies, but the jury were not obliged to credit the explanations, and, if they did not, the evidence of appellant’s status as a bona fide holder was in conflict. . That conflict the jury could resolve either way, and, resolving it as they did against the appellant, he could not prevail.

An. examination of the instructions discloses no merit in the contention that the verdict is against law.

The judgment and order appealed from are affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.  