#### AARON D. FENTON, Plaintiff, *v.*CHRISTOPHER S. ROBINSON, Defendant.

*Action on promissory note —fraud on maker*— *when constitutes a defense*— *Negligence.*

This action was brought by a *bona fide*purchaser of a promissory note, which the maker claimed to have signed under the belief that it was a contract to act as agent for a patent cultivator. Upon the trial, evidence was given tending to prove that the note was signed by the defendant at his own house; that he and two of his sons, who were present, could read; that defendant attempted to read the paper, but did not understand it well, and that it was then read over by the person presenting the paper, who was an entire stranger to the defendant and his family, and signed by the defendant. *Held,*that it was proper to submit the question of defendant’s negligence to the jury, and that a motion to direct a verdict in favor of the plaintiff was properly denied. (Learned, P. J„ dissenting.)

This action was tried before the court and jury; the jury found á verdict for defendant. Upon plaintiff’s motion, the court ordered as follows: *“*Exceptions having been taken to the verdict of the jury in this cause, on motion it is ordered that the plaintiff have sixty days to make a case and exceptions, to be heard in the first instance at the General Term,” etc.

The action was brought to recover the amount of a promissory note, alleged to have been executed and delivered by the defendant to one Ingalls, dated July 3, 1872, for $200, payable on or before the 1st day of June, 1873. Upon the trial, evidence was given tending to show that on the 3d of July. 1872, Ingalls, the payee of the note, drove up to defendant’s house and wished to stay all night. That during the evening he exhibited to defendant a model of a cultivator and drill and seeder, and desired defendant to take an agency for the sale of the same in Hector township; and that the next morning the defendant' was induced to sign a contract accepting the agency, and also an order for a machine; on the back of the order was a certificate of.the amount of property owned by him. Duplicates, or purported duplicates, of these papers were made, so that the defendant was required to sign his name six times to papers then prepared by Ingalls. The defendant, quite an old man, is a farmer, not much accustomed to business outside of the routine of his farm duties. He started to read the papers, but *253could not understand them. Ingalls read them all over to him, and then he signed them, believing that they were all right, creating no obligation whatever for the payment of money, except in the contingency in the contract provided. He was assured by Ingalls that the other three papers were exact copies or duplicates, and upon such assurance he signed them. If the defendant ever signed the note in question, he must have done so while signing the supposed duplicates. Not a word had been said about giving a note, or the payment of money. The defendant never signed any note to his knowledge, and never agreed so to do, and never intended to give any note, and if it is his signature to the note, it was procured without his knowledge. The defendant and two of his sons, who were present at the time of the signing the papers, could read.

The machines mentioned in the contract were never delivered, and it was conceded that the whole tiling was a fraud, perpetrated by Ingalls upon the defendant; but it is claimed by the plaintiff, that as he is a holder of the note for value — a *bona fide*holder — he is entitled to recover, notwithstanding the facts testified to by the defendant.

*T. D.*Robinson, for the plaintiff.

*W. H.*Austin, for the defendant.

James, J.:

In this case no judgment was pronounced on the verdict, none entered, and no appeal taken. The case comes here solely upon the order of the judge at the Circuit, upon a motion for a new trial, on a case and exceptions, under authority of section 265 of the Code; and if a new trial, is denied, judgment on the verdict may be given in this court. The plaintiff is, therefore, confined to the exceptions taken at the trial.*

This action was upon a promissory note for $200, payable to Ingalls or bearer, and had come to the plaintiff as a *bona fide*purchaser for value before maturity.

The defense was, that defendant never made or delivered the note; that the signature thereto, if made by the defendant, was *254obtained by fraud, and without defendant’s knowledge that he was signing such a paper.

At the close of the trial, the plaintiff requested the court to direct a verdict in his favor for the amount of the note ; the request was refused.

The case was then submitted to the jury, the court charging, “if defendant executed this note understanding that he was executing a promissory note — understanding that he was tb execute a note to this agent in this business transaction — although he was induced to execute by fraud on the part of this agent, it would be no defense to this suit; but if defendant supposed, and believed, and understood at the time, that he was only signing a duplicate of an order for the delivery of machines, or a duplicate of a contract creating an agency for the sale of machines in the town of Hector, and did not understand, or suppose, or intend to sign any promissory note at all, and was guilty of no neglect on his part in this transaction, in signing the papers— or, in signing papers, he did not understand the real purport of them—then these facts, if found from the evidence in this case, are a legal defense to this noteso that the distinct question of fact was put to the jury, *“*whether, if defendant did not intend to sign a note, or understand he was signing a note, and his signature was obtained by deception and without his knowledge, he was guilty of any negligence in signing under the circumstances as shown by the evidence.” No objection was taken by the plaintiff to this charge, except to that portion wherein the court charged the jury, “ that if defendant signed the note, not knowing it was a note, he was not liable.” As no such charge appears in the case, nor anything like it, unless accompanied by qualifying or explanatory words, the exception is too indefinite and of no effect. The jury found for the defendant. Therefore, the only exception left in the case, is the exception to the refusal of the court to direct a verdict for the plaintiff at' the close of the trial.

This case, in its facts, is very similar to that of *Chapman*v. *Rose,*
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      **except that in this case, the question of negligence was submitted to the jury, and in that, its admission was refused. In *Chapman*v. *Rose,*the charge was, “that if the jury concluded, when Rose signed the orders, he did not intend to execute a note, *255as the transaction never called for one, it was not a note, and was never, at any time, valid in the hands of any partyand the defendant had a verdict. The General Term sustained this ruling. In reversing it the Court of Appeals said: “It turns out that defendant signed a promissory note, and that it is now in the hands of a holder in good faith, for value. The question which arises on the branch of the charge now under consideration, is, whether it is enough, as against a *bona fide*holder, to show that defendant did not know or suppose he was signing a note, unless it also appears *that he was guilty of no laches or negligence*in signing the instrument. To that inquiry the attention of the judge at the trial was distinctly called, and the instruction which he gave, and which was excepted to, did not submit, but excluded the consideration of it from the jury,” The case of *Foster*v. *Mackinnon,*
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      **cited in support of the ruling, was an action upon an indorsement of a bill of exchange, and the court charged the jury, “ that if the defendant signed it, not knowing it to be a bill, and believing it to be a guarantee, in consequence of a fraudulent representation as to its character, and if he was *not guilty of any negligence or laches*in signing it, he was not bound.” The jury found for the defendant. Upon a review, and upon a full and able discussion, the court held the direction to be right.

Therefore, in this class of cases, I understand the rule to be, that when a negotiable promissory note is procured by fraud, deceit or mistake, the maker not having intended making a note, and it gets into the hands of a *bona fide*holder for value before maturity, showing such facts constitutes no defense, unless defendant can go further, and show and establish that, in putting his signature to the note, *he was not guilty of any negligence or laches j*if a party can establish all these facts, he cannot be charged with such an instrument any more than he can be with a note to which his name has been forged. In this case there was evidence upon the question of negligence : the defendant’s age; his being unaccustomed to business outside his farm; his efforts to read the papers; inability to understand them; his having them read over to him, observing they were all right as read, and contained no agreement to pay money except as provided in the contract. This evidence, even *256though weak, was proper for the jury; it would have been error not to have submitted it, and therefore the court was right" in its ■refusal to direct a verdict as requested.

Upon the motion before us we have no right to review the verdict ; no right to examine the evidence further than necessary to determine whether the court was right in refusing to direct a verdict for the plaintiff.

Motion for a new trial denied, and judgment ordered for defendant on the verdict.

Siegel v. Schantz, 3 N. Y. S. C., 353.

44 How. Pr., 364; 9 Alb. Law Jour., 39.

L. R. (4 C. P.), 704.

Boardman, J.:

Concurring in brother Learned’s views of the law, I still think the question of defendant’s negligence was fairly submitted to the jury, and the judgment should be ordered for the defendant on the verdict, unless there is conclusive evidence of negligence on defendant’s part. I think there was evidence tending to show that the defendant exercised care and prudence in ascertaining the contents of the paper signed by him. He endeavored to find out what he was signing, and supposed he had. It is true the evidence is not very strong or satisfactoiy, but it is evidence upon the subject, and it can rarely be a matter of law to determine the dividing line between necessary care on the one hand, and negligence on the ■other. • Believing that there is some evidence to sustain the verdict of the jury, I am disposed to concur in the opinion of brother James.

Learned, P. J.

(dissenting):

I think that the court should have directed a verdict for the plaintiff. It was admitted that the plaintiff was a *bona fide*holder for value.

The syllabus of *Chapman*v. *Rose,*
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      **is, that “ where one having the opportunity and the power to ascertain with certainty the exact obligation he is assuming, yet chooses to rely on the statements of the person with whom he is dealing, and executes a negotiable instru.ment without reading or examination ; as against a *bona fide*holder for value, he is bound by his act. To avoid liability he must show that he was guilty of no laches or negligence in signing.” In that *257case the court say that *“*meaning to make an obligation in writing, and which was put in writing that it might of itself import the fact and the form and the measure of the obligation, he trusted to another to fix that form and measure, without exercising that supervision which was in his power, and by which perfect protection was possible. In such case the rule is that he is bound by the act of him who has been trusted, in favor of a holder in good faith.”

That case is almost identical with the present. Ingalls, a stranger, came to the defendant’s house and made some bargain with him about a cultivator patent right. The defendant had a wife and five children in his family. He could read and two of his sons, could read. He did read one of the papers; that which was delivered to him. Ingalls said the other was just like it, and the defendant signed it without reading, and without having his family read it. Thus the defendant had the opportunity and power to ascertain with certainty the exact obligation he was signing. He could have read it, or he could have had his sons read it. Instead of doing this he trusted to the statements not of an indifferent person but of the person with whom he was dealing; and that person was an utter stranger. Can it be said that he was guilty of no negligence ?

It is not a question of degree of negligence; it is a question whether there was any negligence. If there was, the defendant cannot shield himself from liability on his note. By signing the note he enabled Ingalls, or some one else, to obtain the money of the plaintiff, an innocent person. To escape from liability on the note, he must show that he was guilty of no negligence or laches.

We must remember that negligence is not the ground of action. Want of negligence is the alleged ground of defense.

Now the defendant did not read the paper which he signed and gave to Ingalls; he had the power to read it, and the opportunity; he could have caused it to be read to him by those on whom he might reasonably rely; he did not do this; he trusted a man whose interests were adverse to his own, and no reason is shown why he should have thus trusted. The facts were undisputed. 1 think they did not warrant the submission to the jury of the question whether the defendant was free from laches or negligence.

Motion for new trial denied.

56 N.Y., 137.