Catron v. Scripps.

reduction of the rent, it would have been error for the court to reject it; but the record shows that appellant only offered to show that appellee was indebted to the tenant on an account between them for work, labor and money paid, without anything further as to time or circumstances being shown which would enable the court to see that such indebtedness ought to be applied in reduction of the rent in question, and therefore the court properly rejected it.

As to whether appellee had expressly agreed with appellant to waive the lien on the grain, as testified to by appellant, and which was expressly denied by appellee, that was a question properly submitted to the jury, and their finding in favor of appellee is abundantly supported by the evidence in this record.

As the record shows that the verdict is supported by the evidence and fails to show that the trial court refused to admit proper evidence offered by appellant, the judgment will be affirmed.

Mary Catron v. William Scripps.

1. VERDICTS-Upon Conflicting Evidence.—A verdict upon conflicting evidence, with testimony sufficient, when standing alone, to support it, will not be set aside.

Assumpsit, on the common counts. Appeal from the Circuit Court of Fulton County; the Hon. JOHN A. GRAY, Judge, presiding. Heard in this court at the November term, 1901. Affirmed. Opinion filed February 19, 1902.

WORLEY & KEEFER, attorneys for appellant.

J. S. WINTER, attorney for appellee.

MR. JUSTICE WRIGHT delivered the opinion of the court. This was an action of assumpsit-declaration, the common counts-by appellee against appellant, and the trial by jury ended by the court directing a verdict against appellant for $300, upon which a judgment was rendered, and this appeal is brought to reverse the same.

Appellant leased to appellee a quantity of land to be mined by the latter for coal. Appellee loaned or advanced to appellant $300, which it was the understanding should be applied toward the payment of the royalty for coal under the terms of the lease, from time to time, as the same might mature.

Soon after the lease was signed and delivered, and while appellee was prospecting for coal upon the leased land, appellant notified him in writing that because two mortgagees, having a mortgage upon the land, objected to having the land mined unless the royalty was paid upon their interests, who, as she said, it had been misrepresented to her, had consented to the lease, and had not, she revoked the lease, and desired appellant to desist from further mining her land, and $300 paid to her was subject to the order of appellee, and would be paid to him on surrender of the lease at the bank of Ipava. Appellee accepted the cancellation of the lease and surrendered it to the bank as requested, but the money was not paid to him, this suit being for the recovery thereof. Thereafter there were negotiations between the parties about a new lease, and it is contended by appellant the terms of such were agreed upon, and as part of such terms she was to retain the $300 previously paid to her, but this was disputed by appellee. The court held no such agreement had been proved and directed a verdict accordingly.

Had the court submitted the case to the jury upon the evidence, and if then the jury had returned a verdict in favor of appellant, the court, upon the motion of appellee for a new trial, would have been required to grant such motion, because such verdict could not be sustained by the evidence. There is no question the lease was surrendered by appellee as appellant had requested, in accordance with her promise to leave the $300 at the bank for him, which she failed to do. The burden was then upon her to prove that by some subsequent arrangement she was entitled to retain the money, and this, by a most liberal analysis of her own testimony, she failed to prove. The terms of another

Fidler v. Paxton.

lease, it is true, were talked about and considered by the parties, but the evidence fails to show that it was agreed upon. There is no claim that such a lease was ever executed and delivered, and it is unreasonable to suppose that any ordinary man of business would undertake to mine upon others' lands without the written authority of the owner. In truth an oral lease, such as is contended for by appellant, would be plainly invalid, and incapable of legal enforcement, in view of the provisions of the statute of frauds.

The decision of the trial court was right, and its judg ment will be affirmed.

L. E. Fidler v. Charles Paxton.

1. COMMERCIAL PAPER-Assignee of, Before Maturity and for a Valuable Consideration.-A party who takes commercial paper before maturity, for a valuable consideration, without knowledge of any defects of title, and in good faith, holds it by a valid title against the world. Suspicion of defect of title, or the knowledge of circumstances which would excite suspicion in the mind of a prudent man, or gross negligence on the part of the taker at the time of the transfer, will not defeat his title. That result can only be produced by bad faith on his part. The burden of proof lies on the person who assails his rights.

Assumpsit.-Common counts. Appeal from the Circuit Court of Edgar County; the Hon. HENRY VAN SELLAR, Judge, presiding. Heard in this court at the November term, 1901. Affirmed. Opinion filed February 19, 1902.

J. W. HOWELL and DUNDAS & O'HAIR, attorneys for appellant.

VAN SELLAR & SHEPHERD and H. S. TANNER, attorneys for appellee.

MR. PRESIDING JUSTICE BURROUGHS delivered the opinion of the court.

Appellee, Charles Paxton, a grain dealer of Kansas, Illi

nois, brought an action of assumpsit in the Circuit Court of Edgar County against appellant, L. E. Fidler, a farmer, to recover upon a promissory note which appellee had purchased before it was due, from one Griffith, for a valuable consideration; which note was executed and delivered by appellant to Griffith and payable to his order.

The declaration contained a special count on the note, and the appropriate common count. Appellant pleaded non assumpsit, and the parties stipulated that any evidence could be introduced under that plea which might be proper under any other plea well pleaded.

The trial was by jury and resulted in the court directing a verdict and entering a judgment in favor of appellee for $89.95, being the amount due according to the terms of the note.

Appellant moved for a new trial, which being denied, he took an exception, brings the case to this court by appeal, and insists that the trial court erroneously directed a verdict against him which was against the evidence and the law applicable thereto.

It appears that appellant lived upon a farm, and being solicited by one Griffith, an agent for a life insurance company, to take a $5,000 policy of insurance, made application therefor, and in part payment of the first year's premium, gave Griffith his promissory note which was as follows: "CONLAGUE, ILL., 8-30, 1900. December 25, 1900, after date, I promise to pay to the order of C. C. Griffith, eighty-five and 40-100 dollars at Kansas, Ill., value received, with interest at 7 per cent per

annum.

(Signed)

L. E. FIDLER."

When the note was given, it was understood between appellant and Griffith, that the former was to be examined by the company's physician before being given the policy, and that if, upon investigation, appellant should not be satisfied to take the policy, Griffith would return the note to him.

When appellant learned of the terms of the policy which the company proposed to give him, he was unwilling to

Fidler v. Paxton.

receive it or be examined by the company's physician, and claiming that the policy was not as favorable to him as Griffith had represented when he gave him his note, requested Griffith to return the note to him. Griffith did not return the note to appellant, but for a valuable consideration, sold and assigned it to appellee about two months before it was due.

Some time in the fall of 1900 (the time is not given) a son of appellant, in pursuance of a request sent him by appellee, came to appellee's office in Kansas, and, as testified to by the son:

"Mr. Paxton said he wanted to ask me a question about this note that father gave to Mr. Griffith, and he wanted to know whether it would be all right or not; I suppose whether it was good or not; that's about what I thought, and I told him that there would more than likely be trouble about the note, as father had spoken to me that he did not get what he was expecting, and he thought that he wouldn't pay the note, and I told Mr. Paxton that he better not trade for it if he didn't want trouble, and he says, Very well, I have enough trouble of my own without buying trouble, and if you say there will be trouble over it, I will not buy the note.'

6

Appellee testified with reference to this conversation, that he sent for appellant's son, and "he (the son) came to my office and I asked him in regard to his father's financial standing, on account I didn't know his father, but I knew him; didn't know his father only by hearsay. I asked him if he thought his father was able to pay the note. He said he thought he was, small notes; he said he thought he was in the habit of keeping his debts paid. He asked me why I wanted to know and I told him then about the Griffith note and I remarked something about trouble, don't remember exactly what it was, I expect he remembers it better than I do. At that conversation, I had the note in my possession; but I did not tell him. I had asked our bank about the responsibility of the father, and then I sent for the son. The son told me he thought or had heard that there would be some trouble; he did not say anything to me about not