2. BILLS AND NOTES (8 497*) - BONA FIDE, ing it. The court further charged "that un HOLDERS-BURDEN OF PROOF. The burden of one suing on a note defend ed on the ground of fraud to show that he was a holder in due course was not discharged by his testimony tending to show that fact; he being required to maintain the issue by a preponderance of all the evidence. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1675-1687; Dec. Dig. & 497.*] 3. EVIDENCE (§ 94*)-BURDEN OF PROOF. The burden of proof to establish facts, as distinguished from the burden of first proceeding in a trial, does not shift and is unaffected by the evidence as the trial proceeds. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 116, 117; Dec. Dig. § 94.*] 4. EVIDENCE (§ 588*)-QUESTION FOR JURYCREDIBILITY OF WITNESSES CONCLUSIVENESS OF TESTIMONY. A jury cannot arbitrarily reject testimony, but need not accept it when it is rendered improbable or doubtful by circumstances. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 2437; Dec. Dig. § 588.*] 5. BILLS AND NOTES (§ 537*)-BONA FIDES OF HOLDER-JURY QUESTION. der the admitted facts in the case the South ern Missouri Jack Company, which transferred said note to the plaintiff, obtained the signature to said note by fraud, and that such admitted facts place the burden of proof upon the plaintiff to prove by a preponderance of the evidence that he is a holder in due course as above explained." Complaint is made of this instruction. By our negotiable instrument statute (section 1604, Comp. Laws 1907) it is provided that: "A holder in due course is a holder who has taken the instrument under the following conditions: That the instrument is complete and regular upon its face; that he became the holder of it before it was overdue, and without notice that it had been previously dishonored, if such was the fact; that he took it in good faith and for value; that at the time it was negotiated to him he had no notice of any infirmity in the instrument or defect in the title of the person negotiating it." By section 1611 that: "Every holder is deemed prima facie to be a holder in due course; but when it is shown that the title of any person who has negotiated the instrument was defective, the burden is on the holder to prove that he or some person Under Comp. Laws 1907, § 1590, provid- under whom he claims acquired the title as ing that an indorsement without recourse shall a holder in due course," etc. Under such a not impair negotiability, such indorsement can-statute it is very clear that, when it was not be regarded as evidence against an indorsee's holding in good faith. Whether one suing on a note took it for value and without notice of fraud in its inception held under the evidence a jury question. [Ed. Note. For other cases, see Bills and Notes, Dec. Dig. § 537.*] 6. Bills and Notes (§_171*)—Bona Fides of HOLDER-EFFECT OF INDORSEMENT. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 415; Dec. Dig. § 171.*] Appeal from District Court, Cache County; W. W. Maughan, Judge. shown that the title of the company which negotiated the note to the plaintiff was defective, the burden was on the plaintiff to show that he acquired title as a holder in due course as defined in section 1604. Cita Action by R. B. Leavitt against Imation of authorities in support of a proposiThurston. Judgment for defendant, and tion so plainly declared by the statute would We, however, refer to plaintiff appeals. Reversed and remanded. seem unnecessary. section 168, p. 228, of Selover on Negotiable Instruments (2d Ed.), and the cases there cited; and especially refer to Parsons v. Utica Cement Mfg. Co., 80 Conn. 58, 66 Atl. John A. Sneddon, for appellant. J. C. Walters, for respondent. 228, 70 N. E. 53, Hodge v. Smith, 130 Wis. 326, 110 N. W. 192, and Bank v. Jordan, 139 Iowa, 499, 117 N. W. 758. STRAUP, J. This is a suit on a negotia-1024, Regester's Sons Co. v. Reed, 185 Mass. ble promissory note alleged to have been executed and delivered by the defendant to the Southern Missouri Jack Company, a corporation, and by it sold and transferred to the plaintiff. It was stipulated and agreed on the trial that the note was obtained by the company from the defendant by fraud and misrepresentations. The issue tried to the jury was as to whether the plaintiff was a holder in due course. A verdict was rendered in favor of the defendant. The plain-and that the burden then shifted to the detiff appeals. The appellant, however, urges that the burden, cast upon him when fraud was shown in the inception of the note, was discharged by the giving of his testimony that he purchased the note in good faith for value before maturity in the usual course of business and without notice of the fraud; fendant to show that the plaintiff took the The court, among other things, charged the note with knowledge or notice of the fraud. jury that every holder is deemed prima facie Here counsel confuse the term, "burden of to be a holder in due course; that by "hold-proof"-the onus probandi-which does not er in due course" is meant one who becomes shift, with that of the "burden or duty of a holder of the instrument before it is over- | proceeding," or going forward, which in the due, and who takes it in good faith and for course of the trial upon various facts may, value, and at the time it is negotiated has and frequently does, shift from one party to no notice of any infirmity in the instrument the other. Whenever the existence of any or defect in the title of the person negotiat- fact or facts is necessary in order that a party may make out his case or establish a defense, the burden of proof-the onus probandi-is on such party to show the existence of such fact or facts. That burden does not shift and is unaffected by the evidence as the trial proceeds. After all the evidence is in, the one having the burden will lose unless the evidence bears more heavily in his favor. Upon proof of fraud in the inception of the note, the statute undoubtedly casts on the holder, not only the mere duty or burden of proceeding or of going forward, but the burden of establishing the existence of facts showing that he, or some person under whom he claims, acquired title as a holder in due course, and as defined in section 1604, which includes the fact that at the time the note was negotiated he, or the person through whom he acquired title, had no notice of the fraud or infirmity. If evidence is given by him tending to show that he was such a holder in due course, that does not then shift the burden of proof to the defendant to establish the fact that he, or the person from whom he acquired title, had notice or knowledge of the fraud, or that no value was paid for the note, or that it was purchased overdue, but merely the duty of proceeding in the production of evidence if he desires to meet or overcome the effect or weight to be given the evidence so adduced by the holder. But, upon all the evidence on such issue, the holder will lose unless the evidence bears more heavily in his favor. We think the charge in this particular was right. witness and reject his testimony, neither are they bound to accept a fact as established merely because he testifies to it, when the circumstances render its existence, or the testimony of the witness, improbable or doubtful. We think that the evidence was such that the issue as to whether the plaintiff took the note for value and without notice of its infirmity was for the jury. But the court gave an instruction also complained of which we think is erroneous and prejudicial to the plaintiff. The note was indorsed to the plaintiff "without recourse." The court instructed the jury: "While the indorsement without recourse is not of itself sufficient to prevent the plaintiff from being a holder in due course, nor to charge him with notice of any defense, and while the fact, if you find it to be a fact, that the plaintiff purchased the note for less than its face value, is not of itself sufficient to charge the plaintiff with notice of any defenses or existing equities against the payee, yet the jury may consider each of such facts, if you find them to be facts, in connection with all of the other evidence in the case, determining whether or not the action of the plaintiff in taking the said note was in good faith or in bad faith.” Again referring to the statute, we find it provides (section 1590) that: "A qualified indorsement constitutes the indorser a mere assignor of the title to the instrument. It may be made by adding to the indorser's signature the words 'without recourse' or any words of similar import. Such an indorsement does not impair the negotiable character of the instrument." In 4 A. & E. Ency. L. (2d Ed.) 276, the rule is stated that: "An indorsement 'without recourse' or other qualified indorsement does not in any respect affect the negotiability of the instrument, but simply qualifies the duties, obligations, and responsibilities of the indorser, resulting from the general principles of law. Nor does such indorsement cast any suspicion on the character of the paper, nor indicate, in any case, that the parties to it are conscious of any defect in the security, or that the indorsee does not take it on the credit of the other party or parties It is further urged that the plaintiff, after the admission of fraud in the inception of the note, having testified that he in good faith purchased the note before it was overdue, for value, and without notice of the fraud, or of any infirmity of the note, and no evidence on behalf of the defendant being introduced to contradict the plaintiff, or refute his testimony, was entitled to a directed verdict in his favor. Where a note was defended against on the ground of fraud in the inception of the note or fraudulently put into circulation, and where the plaintiff testified that he in the due course of business acquired the note in good faith before maturity for value and without no-to the note. On the contrary, he takes it tice, and the defendant introduced no testimony to contradict the plaintiff, it has been held that the defendant was entitled, nevertheless, to go to the jury on the question In 7 Cyc. 809, it is said that: "An indorswhether the plaintiff took the note for value er may transfer title and at the same time, and without notice of the fraud. Bank v. except so far as he is still chargeable with Fountain, 148 N. C. 590, 62 S. E. 738; Bank implied warranties as a seller of the paper, v. Iron Works, 159 Mass. 158, 34 N. E. 93. create no liability as indorser by indorsing a The facts of the case in hand do not require bill or note 'without recourse' or with words us to go to that extent, for the circumstanc- which are deemed to be of equivalent imes of the transaction under which the plain-port; but the addition of these words will tiff acquired the note, as testified to by him, not affect the negotiability of the instruthemselves cast suspicion upon the questions ment and will not be a notice of defects to of his good faith, his innocence of the fraud, put a purchaser on his guard.” and the value paid by him for the note. solely on their credit, and the indorser only shows thereby that he is unwilling to make himself responsible for the payment." Cases are there cited supporting the texts. Barrett, 34 Kan. 223, 8 Pac. 129, where the court said "that the indorsement qualified by the words 'without recourse' is not out of due course of trade and does not throw any suspicion upon the character of the paper," and to the case of Stevenson v. O'Neal, 71 Ill. 314, where it was said that "we do not doubt such an indorsement (without recourse) might aid in creating such a suspicion (some infirmity in the note), and would put the assignee on inquiry; but we have searched the authority establishing the proposition to the extent claimed for it (raising a suspicion of infirmity), but in vain." The effect of such an indorsement is merely to qualify "the duties, obligations, and responsibilities of the indorser." We do not see how it can be considered as evidentiary of notice of any infirmity of the instrument. While the court charged the jury that it was not alone sufficient to establish such no tice, the court, nevertheless, charged them that it was a proper fact or circumstance to be considered by them in determining whether the plaintiff took the note in good or bad faith. From such an instruction the jury necessarily must have understood that plaintiff's taking the note with such an indorsement was some evidence properly to be considered by them as bearing on the question of his good faith and notice of the infirmity. We do not think it was. To hold that it was is in effect to hold that the negotiable character of the instrument is to that extent impaired. Because of this error, the judgment of the court below is reversed, and the case remanded for a new trial. Costs to the appellant. FRICK, C. J., and MCCARTY, J., concur. (19 Idaho, 170) STORER v. HEITFELD et al. (Supreme Court of Idaho. Dec. 31, 1910.) (Syllabus by the Court.) 1. FRAUDS, STATUTES OF (§ 160*)-INSTRUC TIONS. Under subdivision 2 of section 6010, Rev. Codes, "A promise to answer for the obligation of another in any of the following cases is deemed an original obligation of the promisor and need not be in writing: * * (2) Where the creditor parts with value, or enters into an obligation, in consideration of the obligations in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety." [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. § 379; Dec. Dig. § 160.*] 2. FRAUDS, STATUTE OF (§ 31*)-PROMISE TO ANSWER FOR DEBT OF ANOTHER-COLLATERAL PROMISE. When the consideration of a party's promise is for money to be furnished to or received by a third person, if the transaction be such that the third person remains responsible to the person who furnishes him with such money, such promise is collateral, and under the statute of frauds will not bind the party unless it be in writing. [Ed. Note.-For other cases, see Frauds, Statute of, Cent. Dig. §§ 47, 48; Dec. Dig. § 31.*] 3. FRAUDS, STATUTE OF (§ 160*) - INSTRUC TIONS. This case was defended upon the theory that the defendants were not liable; that if any promise was made by the defendants, such promise was collateral, and made the promisors guarantors only under the provisions of section 6009, Rev. Codes, and not an original obligation of the promisors; that such agreement was invalid unless in writing and subscribed by the party charged, or his agent. As there was evidence tending to show that if any promise was giving an instruction covering that theory of the made it was collateral, the court erred in not case. The SULLIVAN, C. J. This is an action brought by the plaintiff against the defendants to recover the sum of $2,500 with interest thereon from September 9, 1903. plaintiff alleges in his complaint that on September 9, 1903, he paid to one A. N. Buchanan said sum of money at the request of the defendants and that they agreed to pay said sum to plaintiff within 10 days thereafter; that, although demand for payment has been made, the defendants have failed and refused to pay the sum or any part thereof. After demurrer was overruled the defendants answered and denied that plaintiff at any time at the request of defendants, or either of them, paid to said Buchanan' the said sum of $2,500, or any sum whatever, and denied specifically each and every allegation of the same. The cause was tried by the court with a jury, and verdict and judgment entered in favor of the plaintiff in the sum of $3,647.70. The appeal is from the judgment and order denying a new trial. This case was before this court on appeal at its October, 1909, term, and the opinion rendered therein may be found in 17 Idaho, 113, 105 Pac. 55. The first point made by counsel for appellants is that plaintiff seeks to recover from the defendants on the ground that they are original promisors, and that contention is denied by both of the defendants. This action is evidently brought under the provisions of paragraph 2 of section 6010, Rev. Codes, which section provides, among other liable for the indebtedness, the promisor cannot be charged as an original contractor, but at most as a mere guarantor." things, as follows: "A promise to answer for | ration, or it was treated as in any degree the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: (2) Where the creditor parts with value, or enters into an obligation, in consideration of the obligations in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety." Counsel for appellants contend that the facts of this case as shown by the evidence do not bring it within the provisions of said section, but that if any promise or agreement was made between the plaintiff and defendants with reference to the sum of money paid by plaintiff to Buchanan, that the same could not have been other than a collateral undertaking on their part, in which they became merely guarantors or sureties, and therefore the action falls within the statute of frauds as provided by section 6009, Rev. Codes. Said section sets forth the cases in which the agreement is invalid unless the same or some note or memorandum thereof is in writing and subscribed by the party charged or by his agent. It is contended that the statute of frauds was enacted to relieve persons and their estates against false and fictitious claims by requiring the highest order of proof to establish liability in cases where it is sought to recover against a person as voluntary surety or guarantor of another, and in support of that contention counsel cites Johnson v. Bank, 60 W. Va. 326, 55 S. E. 394; Mankin v. Jones, 63 W. Va. 373, 60 S. E. 248, 15 L. R. A. (N. S.) 214. It was held in Radcliff v. Poundstone, 23 W. Va. 724, that when the consideration of a party's promise is for money to be furnished to or received by a third person, if the transaction be such that the third person remains responsible to the person who furnishes him with such money, such promise is collateral, and under the statute of frauds will not bind the party unless it be in writing. It is also contended that where it appears that credit is not given in the first instance wholly to the person who promises to pay for advances made or goods delivered to the third person, or for his benefit, then the undertaking is collateral and must be in writing, citing Webb v. Hawkins L. Co., 101 Ala. 630, 14 South. 407; Harris v. Frank, 81 Cal. 280, 22 Pac. 856; Moses v. Norton, 36 Me. 113, 58 Am. Dec. 738. In Harris v. Frank, 81 Cal. 280, 22 Pac. 856, the court held as follows: "Whether an agreement by a third party to pay for supplies furnished to a corporation is one of original promise or of guaranty is a question of fact to be determined from the circumstances of the case. It is not determined by the fact that charges are made and statements furnished to the corporation, if the promisor so ordered; but if any credit was in fact given to the corpo The above authorities are cited and relied upon by counsel for appellants as sustaining their contention that the evidence in this case shows that the defendants were not original promisors, and, not being original promisors, at most they could only be collaterally liable, and then only when the agreement or some note or memorandum thereof is in writing subscribed by the party charged or by his agent, under the provisions of section 6009, Rev. Codes. The appellants in their answer denied the material allegations of the complaint, and under those denials it was not necessary for them to plead specially that the contract was one of guarantee and was void under the statute of frauds because not in writing, for under the general denial they could avail themselves of such statutes. Harris v. Frank, 81 Cal. 280, 22 Pac. 856. The case was tried upon the theory that the defendants were not liable; that if any promise were made by the defendants, such promise was collateral and must be in writing. That being the theory upon which the case was presented by the appellants, it was error for the court to refuse to instruct the jury to the effect that, if they should find from the evidence that any credit was in fact given to Trainor or the irrigation company, or that they, or either of them, were in any degree liable for the indebtedness, the defendants could not be charged as original contractors, but at most as mere guarantors, and under the provisions of section 6009, Rev. Codes, they were not liable unless such agreement or note or memorandum thereof was in writing and subscribed by the party charged or by his agent. The substance of such an instruction was contained in instruction No. 3 requested by the appellants, and thus called to the attention of the trial court. The court also erred in admitting over the objection of counsel for appellants Exhibit B, being a letter from Trainor to the plaintiff; also in admitting the testimony of witness Showalter specified in error No. 12, as found erred in refusing to permit the witness Hilon page 144 of the transcript. Also the court will ask you to state substantially what those bert to answer the following question: "I conversations were," as specified in error No. 15; also in refusing to permit witness Barnett to answer the question set forth in error No. 17. The other errors assigned have been examined, and as to them we find that the court did not err in making the said rulings excepted to. For the reasons above given, the judgment must be reversed, and the cause remanded for a new trial, and it is so ordered. Costs are awarded to the appellants. AILSHIE, J., concurs. (19 Idaho, 111) NAVE v. McGRANE. (Supreme Court of Idaho. Dec. 30, 1910.) (Syllabus by the Court.) 1. CONTRACTS (§ 9*)-BUILDING CONTRACTS PLANS AND SPECIFICATIONS-SUFFICIENCY. The plans and specifications for the construction of a large building should be definite, specific, and certain, in justice both to the contractor and the owner. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.*] 2. CONTRACTS (§ 350*)-BUILDING CONTRACTS -PLANS AND SPECIFICATIONS-SUFFICIENCY. The testimony of a contractor, or contractors, to the effect that certain plans and specifications, are sufficient will not be taken as against the plans and specifications themselves, when they clearly show that they are not definite and certain, and against the recognized authorities on engineering, contracts and specifications, and architecture, and especially is that true where the plans and specifications will permit the bidder or contractor to figure on first-class and expensive material, and are not specific enough to prevent his using an inferior material of a less value. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 350.*] 3. CONTRACTS (§ 280*)-BUILDING CONTRACTS -PLANS AND SPECIFICATIONS-DUTY OF AR CHITECT. It is the duty of the architect to obtain from the owner all facts necessary to enable him to prepare proper plans and specifications for the proposed building. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 280.*] 4. CONTRACTS (§ 280*)-BUILDING CONTRACTS -PLANS AND SPECIFICATIONS-DUTY OF ARCHITECT. The architect should prepare a contract as a part of the plans and specifications, between the owner and the contractor for the construction of a proposed structure, in order to intelligently protect both parties thereto, as the own er, as a rule, has not a sufficient knowledge of such matters to know the details of such a contract. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 280.*] plans and specifications are thus definite, the bid to construct the building would only indicate a willingness to negotiate further in re gard to the matters not specified. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.*] 7. CONTRACTS (§ 9*)-BUILDING CONTRACTSSPECIFICATIONS-SUFFICIENCY. Held, that the specifications in regard te the foundation of the building are not sufficient. ly specific. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.*] 8. CONTRACTS (§ 9*)-BUILDING CONTRACTSSPECIFICATIONS-SUFFICIENCY. Held, that the plans and specifications in regard to the electric wiring of the building are not sufficiently definite and certain. [Ed. Note. For other cases, see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.*] 9. CONTRACTS (§ 349*)-BUILDING CONTRACTS -ACTION FOR PRICE OF SPECIFICATIONS-ADMISSIBILITY OF EVIDENCE. Where the specification for the electric wiring provides that "the wiring must all be according to the latest improved methods according to the city ordinance, and the rules and regulations of the under writes, subject to their inspection," etc., and the court refuses to permit the defendant to show on cross-examination of the plaintiff that if the rules and regulations referred to constitute the National Electric Code, which is accepted as fire underwriters' regulations, such Code authorizes the wiring in several different ways and that different kinds of material, some more expensive than others, may be used, the refusal of the court to admit such evidence held error. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 349.*] 10. TRIAL (§ 29*)-CONDUCT OF TRIAL-MISCONDUCT OF JUDGE. The trial court must avoid remarks that tend to give to the jury the impression that counsel is asking foolish questions and trifling with the court, and thus create prejudice. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 80-84, 508; Dec. Dig. § 29.*] 11. BUILDING CONTRACT SUFFICIENCY OF SPECIFICATIONS. The specificatious for plumbing and heating are indefinite and uncertain. 5. CONTRACTS (§ 9*)-BUILDING CONTRACTS 12. CONTRACTS (§ 280*)-BUILDING CONTRACTS -SPECIFICATIONS. "Specifications" in architecture embrace, as understood by the profession, not only the dimensions and mode of construction, but a description of the material, its kind, length, breadth, and thickness, and the manner of joining the separate parts. It is a particular and detailed account of a thing; the accurate description of the materials to be used and work to be performed in the construction of a building; a written instrument containing a good. minute description, account, or enumeration of particulars. [Ed. Note. For other cases. see Contracts, Cent. Dig. §§ 10-20; Dec. Dig. § 9.* -EMPLOYMENT OF ARCHITECT. There is an implied understanding upon the employment of an architect that the work shall be suitable and capable of being used for the purposes for which it is intended, and apart from questions of public policy this principle would prevent the architect from recovering payment for plans and specifications prepared in violation of law, unless he was so directed to prepare them by the owner. [Ed. Note. For other cases, see Contracts, Dec. Dig. § 280.*] 13. INSTRUCTIONS ERRONEOUSLY REFUSED. Held, that the court erred in refusing to give plaintiff's instructions 1 to 13, inclusive, or For other definitions, see Words and Phrases, instructions substantially covering the same vol. 7, pp. 6606, 6607.] 6. CONTRACTS ($ 9*)-BUILDING CONTRACTS— PLANS AND SPECIFICATIONS-SUFFICIENCY. ground. (Additional Syllabus by Editorial Staff.) 14. WORDS AND PHRASES “PLAN." A "plan," when applied to a building, is an architectural drawing representing the horizontal sections of the various floors or stories of the building, the disposition of apartments and walls, with the situation of the doors, windows -in fact, represents the different stories as they The plans and specifications must be definite and certain as to the kinds and qualities of materials to be used and the class of workmanship, the time within which the building must be completed, the method of making payments, and matters relating to the insurance of the structure during its construction, and unless the |