Hardy v. First National Bank

The opinion of the court was delivered by

: I. We will first consider the case as to the $2,000 note. It was alleged in the answer that M. L. Stewart was at the time the purchase was made a partner of Gilbert and Lehman in the tract called *496the “Stewart 40”'; that they had full power to dispose of it as they chose ; that Stewart knew they were selling it to the defendants, and that they were pretending to become joint purchasers of said lands. It is contended on the part of the bank that Stewart was a bona fide owner and holder of the nqte, and that the bank by the indorsement obtained a good title to it, free from any defenses; but the evidence of Stewart shows that he had full knowledge of the fact that Gilbert was acting in a dual capacity as vendor and vendee of the property, which was a dishonest relation, unless all interested parties were fully apprised of it. In Michoud v. Girod, 4 How. (U. S.) 503, 555, Mr. Justice Wayne, delivering the opinion of the court, said that the law

“prohibits a party from purchasing on his own account that which his duty or trust requires him to sell on account of another, and from purchasing on account of another that which he sells on his own account. In effect, he is not allowed to unite the two opposite characters of buyer and seller, because his interests, when he is the seller or buyer on his own account, are directly conflicting with those of the person on whose account he buys or sells.”

And this is a well-recognized principle, both at law and in equity. And as Lehman and Gilbert were the managing officers of the bank, and the owners of a one-half interest in the note, the bank was chargeable with notice of all equities between the original parties to it. (Mann v. National Bank, 30 Kan. 412, 420, 421, as modified in same case, 34 Kan. 746, 751, 752.) We therefore hold that the evidence should have been submitted to the jury as to this note.

II. The complaint as to the $4,000 note is that Lehman and Gilbert knew that Moore held an option-for the purchase of the Briggs 40 at $15,000, which *497was to be sold to the syndicate for $16,000, and that this was not disclosed. Moore testified that he made no secret of it about Newton, and it is doubtful whether a full knowledge of the fact would have made any difference in the action of the defendants. Certainly Lehman and Gilbert had nothing to gain by the profit which Moore might make out of the transaction, unless it was in obtaining his assistance in the selling of the Stewart 40 by putting both tracts in together; but, besides - this, there is no suspicion of fraud attaching to Frances L. Briggs, the payee of this note. And even if we should treat Lehman and Gilbert as guilty of any fraud with reference to it, yet the bank might obtain a good title to the note by her indorsement, for it is well settled that ‘ ‘ the purchaser of a negotiable instrument from a bona-fide holder for value acquires as good a title as the innocent holder had, and may recover thereon, although he may have had notice of infirmities in the note when he took it.” (Bodley v. National Bank, 38 Kan. 59 ; Porter v. Steel Co., 122 U. S. 267, 283 ; Scotland County v. Hill, 132 id. 107, 117.) In the absence of evidence to the contrary, it must be presumed that the indorsement was made before maturity, and that the bank is a bona fide holder for value. (Rahm v. Bridge Manufactory, 16 Kan. 530.)

The court below will be directed to modify its judgment by allowing $3,189.33 as of date June 23, 1891, on the $4,000 note, and the judgment will be reversed as to the amount allowed on the $2,000 note, and the case remanded for a new trial thereon, in accordance with the principles announced in this case and in that of Constant v. Lehman, 52 Kan. 227.