112 N.W. 557 | N.D. | 1907
This is an appeal from a judgment by both parties. On plaintiff's appeal, the statement of the case was stricken from the files for reasons that are not material now. Defendant has appealed without settling a statement of case. The only question presented is, therefore, whether the findings of fact sustain the judgment. No question is made by the plaintiff that the findings do not sustain the judgment in its favor, and it is not claimed that a different judgment should have been rendered in its favor under the findings. The action was one involving an accounting, and the complaint stated three distinct causes of action. The action was tried to the court, and it was stipulated that separate findings of fact and conclusions of law should be made as to each cause of action, and one judgment entered embodying the amount found due either party in the aggregate under the findings on each of the three causes of action.
The contention of the defandant on his appeal is in reference to the second cause of action. This arose out of a written contract
We think that this contention is well founded. The mere endorsement of these promissory notes created no liability against the defendant. The contract of indorsement has a well-established legal signification. It signifies that the indorser contracts to pay tfie note at maturity, if duly presented for payment to the maker, and the indorser is thereafter duly notified of such presentment. Daniel, Neg. Instruments, section 666; section 6368, Rev. Codes 1905. In this case the indorsement was not made by the defendant as pay-ee, but as a stranger to the notes as originally drawn. His lia
The judgment will be- modified by disallowing the credit of $1,753.75 found due to plaintiff on account of the indorsement of the notes by defendant. The amount allowed plaintiff of. $26-9.46, upon the liability on the indorsement of -the Hans Anderson note, will also be disallowed. The judgment will also be modified by allowing the plaintiff to retain the possession and ownership of all the notes indorsed by the defendant, including the Hans Anderson note, and to have the possession of all securities for said- notes. We are asked to modify the judgment by allowing the defendant certain amounts on account of storing certain machinery described in finding No. 8 of the first cause of action. The sums due under said finding -seem to have been included and' -computed by the trial judge in the general balance found due the defendant on the first cause of action. The findings of fact and conclusions of law give the plaintiff the absolute right to the possession of the machinery in defendant’s possession. This, we think, precludes us from ordering judgment that defendant retain possession of such property
The district court is directed to modify the judgment in the respects indicated in this opinion, and thus modified, the judgment of the district court is affirmed, with the costs in favor of the defendant and appellant.