16 N.M. 414 | N.M. | 1910
Lead Opinion
OPINION OF THE COURT.
“As, however, both parties ask the court to instruct a verdict, both affirmed that there was no disputed question of fact which could operate to deflect or control the question of law. This was necessarily a request that the court find the facts and the parties are therefore concluded by the findings made by the court upon which result the instruction of law was given.”
We deem the full import of this holding developed, however, by the recent case of Empire State Company v. Atchison Company, 210 U. S. 1, where it was said:
“It was settled in Buettell v. Magone, supra, that where both parties request a peremptory instruction, and do nothing more, they thereby assume the facts to be undisputed, and in fact, submit to the trial judge the determination of the inferences proper to be drawn from them; but nothing in that ruling sustains the view that a party may not request a peremptory instruction, and yet upon the refusal of the court to give it, insist, by appropriate requests, upon the submission of the case to the jury where the evidence is conflicting or the inferences to lie drawn from the testimony are divergent.”
In McCormick v. National City Bank, 142 Fed. 132, it was pointed out that Buettell v. Magone was a case where there was no disputed question of fact,'and it was there stated:
“The decision in that case should not be extended to cases in. which, there are disputed questions of fact nor to cases in which the parties ask other instructions in the event the peremptory instructions asked by them respectively are not given.”
So in Minehan v. G. T. Ry., 138 Fed. 37, it was said: “But it would seem that the decision [Buettell v. Magone] cannot be regarded as furnishing a rule for cases where the evidence is conflicting and where the party whose request is refused has coupled with his request other requests directed to particular aspects of the case which repel the implication that the party had consented to a submission of the facts to the court.”
We think the language used by defendants' counsel after their request for a peremptory instruction had been denied was equivalent to a demand for a jury and, in the language of the case last quoted, repelled “the implication that the party had consented to a submission of the facts to the court,” and constituted, under Empire State Company v. Atchison Company, supra, ‘an insistence by appropriate requests upon the submission of the case to the jury.'
3 “It is clear that where the-court would be bound to set aside a verdict for the want of testimony to support it, it may direct a finding in the first instance and not ' await the enforcement of its view by granting a new trial.”
“It is an ancient and well established legal principle that fraud without damage or damage without fraud gives no cause of action; yet when the two do concur there an action lies.”
So in 1 Story's Eq. Jur., Section 203.
“The party must have been misled to his prejudice or injury, for courts of equity do not any more than courts of law sit for the purpose of enforcing moral obligations or correcting uneonseientious acts, which are followed by no loss or damage. It has been very justly remarked that to support an action at law for a misrepresentation there must be a fraud committed by the defendant and a damage resulting from such fraud to the plaintiff. And it has been observed with equal truth by a very learned judge in equity, that fraud and damage coupled together will entitle the injured party to relief in any court of justice.”
So in Morrison v. Lodds, 39 Cal. 385, it is said:
“It is well settled that a party to a contract cannot rescind or avoid a contract on the ground of a false representation of the other party unless he shows in addition to the false representation that he will be damaged by the performance of the contract.”
In Story v. Conger, 36 N Y. 673, 93 A. D. 546, it was said:
“Upon his own statement of the contract the defendant lias done no more than he was legally bound to do. If unjust or immoral means have been resorted to to induce' him to perform that duty there is no remedy. In its result the case stands where and as it ought to stand.”
In a later case from the same state, Deobold v. Oppermann, 111 N. Y. 531, 7 A. S. R. 760, it was held that there was no legal loss when the parties were “subjected to a liability which they agreed to assume in the event which is now alleged as the cause of their misfortune.”
In First National Bank of Skowhegan v. Maxfield, 22 Atlantic 479, the Supreme Court of Maine went to the extent of holding that a mortgage securing a just debt, even if obtained by fraud, was enforcible, the following being the language:
“The payee by giving such mortgage merely secured his own debt and the representation to him by the bank as an inducement to give the mortgage that the bill was unpaid if untrue is harmless and not fraudulent.”
Further authority to the same effect will be found in Ming v. Woolfolk, 116 U. S. 599; Parker v. Jewett, Minn., 55 N. W. 56; Pheteplace v. Eastman, 26 Ia. 446; Michigan v. Phoenix Bank, 33 N. Y. 9; Marriner v. Dennison, Cal., 20 Pac. 386; Snyder v. Heagan, 40 S. W. 693; and cases cited to support the text in the following reference works: 17 Ency. P. & P. 814; 20 Cyc. 42; 14 A. & E. Ency. Law, 2nd ed., 137, et seq.
These latter must be set up by answer in the nature of a plea puis darrein continuance. The universal rule is stated in Philips on Code Pleading, section 363, where it is said:
“Payments made pending the action can be asserted only as new matter and by means of -a supplemental pleading.”
Some reference is made to the payment of one thousand dollars alleged to have been made between the execution of the note and the filing of the suit but aside from the matter of the absence of any answer setting up such payment we discover in the record no testimony that would have justified a finding that such payment was made.
Rehearing
ON REHEARING.
OPINION OF THE COURT.
The original opinion filed in tin's cause shows that there was an issue of fact as to whether or n,ot the defendant Charles Lewis had signed the note sued on as a result of fraud. As pointed out in that opinion the trial court recognized the existence of the issue and was about to send the case to the jury as' to the defendant Lewis when plaintiff dismissed its action as to him, resulting in a judgment for plaintiff against the remaining defendants. The original opinion filed in this cause holds that the plaintiff had the right to dismiss as to Lewis and to proceed against the other defendants. The attention of the court, however, is called by a motion for a rehearing to a contention raised upon appellant’s brief but nor dealt with by the court, which contention appellant claims is decisive of this appeal. It is to the effect that assuming, as the trial court held and as this court has also held in the original opinion, that Lewis, one of the signers, was induced to • sign by fraud, then this fact whether Lewis was or was not a party to the suit or whether judgment was or was not sought against him, constitutes a defense to the action available to the other signers under Section 55, of the Negotiable Instrument Act. (Laws of 1907, Oh. 83, Sec. 55.) Impressed with rhe importance of this contention the case was restored to the docket for further argument and has therefore been reargued to the court upon this point.
Section 55, of the Negotiable Instrument Act, is as follows: “The title of a person who negotiates an instrument is defective within the meaning of this act when he obtained the instrument, or n'm; signature, thereto, by fraud, duress, or. force, fear or other unlawful means or for an illegal consideration or when he negotiates it, breach of faith, or any such circumstances as amount to a fraud.”
The only cases hearing upon this section so far as cited in the briefs and so far as disclosed in Brennan’s Negotiable Instrument Law (ed. of 1911) are from Wisconsin, being the cases of Hodge v. Smith, 130 Wis. 326, 110 N. W. 192, and Aukland v. Arnold, 13 Wis. 64, 11 N. W. 212. In both of these cases it is held that where one of the signatures is obtained by fraud it is a defense available to all signers. In the latter case, after quoting the Wisconsin section which embodies in precisely the same language that is contained in our Section 55, it is said: “The first clause of this section was considered and interpreted in the recent case of Hodge v. Smith, 130 Wis. 326, 110 N. W. 192. It was there held that the title of a person who negotiates commercial paper is defective when he has obtained any signature thereto by fraud, and that if the parties so defrauded be relieved from liability thereon, then such fraud makes such paper voidable by all other persons who signed it, though they did not participate in and were ignorant of such fraudulent conduct at the time they signed it. This conclusion was reached upon the ground that, when several persons assumed such an obligation it is material and important that all who join as makers should .share equally in bearing the burden of its payment, and if, 'through the fraud of the person holding it, such equality of burden is disturbed and the burden increased as to some of the persons signing it, such fraud renders the title defective as to all of the persons who signed it.”