Manawaring v. Keenan

Pleading execution by the defendant of four several notes to the order of a payee named, that “said notes were by the plaintiff purchased of the owner thereof for a good and valuable consideration,” and that they were presented for payment and not paid, all of which allegations, excepting execution of the notes, were denied in the answer, the plaintiff upon the trial put in evidence the notes, with the name of the payee written thereon across the back, testified that he owned the notes, that no part of them had been paid, and rested. Thereupon the defendant moved for dismissal for failure to prove a cause of action, which motion was denied, and erroneously, as the meager testimony of the plaintiff was not sufficiently eked out by the presumptions attaching to the production of the notes on the trial to establish a cause of action. The judgment should be reversed, and a new trial ordered, with costs to abide the event.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event.

DAVIS, J., concurs.

In the absence of proof that the payee indorsed and delivered the notes to the plaintiff, the case as made by the plaintiff did not entitle him to recover, and I therefore concur with Mr. Justice MacLEAN that the judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.