128 Neb. 537 | Neb. | 1935
This is an appeal by the National Mortgage Loan Company, defendant in the district court for Lancaster county (and herein designated as “defendant” or “loan company”), from a judgment entered therein in favor of plaintiff, John W. Baxter, for the sum of $72,620.24. The procedure below was an action in equity, and the cause is here for trial de novo.
In summarizing the allegations of the pleadings, it may be said that plaintiff’s petition sets forth that the defendant on or about June 1, 1924, by fraud, secured the execution and delivery of a note for $55,000, secured by a real estate mortgage covering 4,000 acres, owned by plaintiff in Pawnee county, Nebraska; that at said time plaintiff was fraudulently induced to sign the note and mortgage in blank, with authority to defendant to fill out the same in an amount not in excess of $9,000; that, in violation of such instruction, the note and mortgage securing the same were filled out by defendant in the sum of $55,000, which money was not received by plaintiff, and which note and mortgage were void; that on or about April 1, 1925, by falsely and fraudulently representing to the Federal Trust Company that plaintiff was indebted to defendant in the sum of $55,000 on the note and mortgage aforesaid, defendant caused such Federal Trust Company to pay to it from the proceeds of a loan made by such trust company on plaintiff’s land more than $55,000 “in purported payment of the aforesaid note and mortgage and defendant has refused to account to plaintiff therefor;” and, further, that “defendant in the aforesaid transaction was represented by its secretary, one R. F. Ireland, and plaintiff dealt with said Ireland as an officer and representative of defendant.”
Defendant’s answer contained the following: “1st. Alleges that the present cause of action of the plaintiff is barred by the statute of limitations. 2d. That the plaintiff has been guilty of gross laches and negligence in the assertion of his pretended claim and by reason thereof has no cause of action. 3d. The defendant denies each and every allegation in said petition contained.”
By the fourth, fifth and sixth paragraphs of such answer it was alleged that the plaintiff employed Rolland F. Ireland “as his attorney-in-fact and as an attorney-at-law to represent the plaintiff in” obtaining “money by mortgage on the lands described in plaintiff’s petition and other landsthat pursuant to such employment by plaintiff there was obtained from defendant $55,000 on the mortgage signed by him on the lands described in plaintiff’s petition, which was delivered to plaintiff, and that plaintiff had full notice and knowledge of the said mortgage in the fall of 1924, and fully approved and acquiesced in the same by himself and his authorized agent, received the proceeds thereof, and is estopped to deny same.
To this answer plaintiff filed a reply in the nature of a general denial.
Though the transcript fails to disclose that the plaintiff in any manner challenged the sufficiency of the answer in the trial court, it is now contended that the defendant has failed to properly plead the facts claimed to show that the
However, it seems that in view of the doctrine announced in Scott v. De Graw, 90 Neb. 274, in the light of the facts presented by the present record, the principle announced in the Pinkham case is not controlling. In the instant case the first four paragraphs of plaintiff’s petition set forth a cause of action which accrued, if at all, “on or about April 1, 1925.” In this condition the petition obviously failed to state a cause of action at the time it was filed on June 24, 1932, and it was essential for this purpose that there be added thereto allegations of fact which would show affirmatively that the statute of limitations had not run. Evidently for this purpose the pleader added to his petition paragraph 5, already quoted. By the general denial defendant took issue with the facts alleged in this paragraph, and to this he added the allegation covering the defense of the statute of limitations. While the sufficiency of the latter standing alone might be subject to challenge in connection with the issue formed by the general denial, it seems invulnerable to the attack now made.
In Scott v. De Graw, supra, we find an action on a note due December 11, 1901. The controlling fact was an indorsement of a payment of $6 thereon alleged to have been made on February 7, 1905. The action was begun on December 31, 1909. The allegation of payment was denied in the answer with the allegation that the action was barred. This court, in an opinion by Sedgwick, J., an
Unless the case last cited is now to be overruled, the fundamental reasoning approved therein is controlling on the question of the proper pleading of the statute of limitations in the instant case.
By parity of reasoning the question of the sufficiency of the pleading of the defense of laches must be resolved against the contention of the appellee. Paragraph 5 of his petition, in legal effect, performs a double function. So far as pleading is concerned, it tolls the statute of limitations, and, in addition, alleges facts which, if established by sufficient proof, excuse the pleader’s laches. This pleading was thus necessary and proper. As already set forth, the transaction upon which plaintiff’s demand was based occurred on or before May, 1924. This action was not commenced until June 24, 1932. Under these circumstances the applicable rule is: “If plaintiff’s claim appears to be barred by laches, the circumstances which excuse the apparent delay must be set forth.” 4 Standard Ency. of Procedure, 119. Also, “Where the bill of a suitor who has slumbered long upon his rights shows apparent laches, the suitor must generally account for and excuse his delay by proper allegations in his bill.” 18 Standard Ency. of Procedure, 431. See, also, Landsdale v. Smith, 106 U. S. 391; Godden v. Kimmell, 99 U. S. 201, 212; New Albany v. Burke, 11 Wall. (U. S.) 96; Badger v. Badger, 2 Clif. 137, 154, affirmed 2 Wall. (U. S.) 87; Alexander v. Fidelity Trust Co., 215 Fed. 791; Jones v. Perkins, 76 Fed. 82; Kleinclaus v. Dutard, 147 Cal. 245; Bell v. Hudson, 73 Cal. 285; Wilcoxon v. Wilcoxon, 199 Ill. 244; Walker v.
“But by analogy to the statute of limitations some courts hold the rule to be that the plaintiff need not allege facts avoiding the appearance of laches unless the delay is in excess of the period of limitation.” 18 Standard Ency. of Procedure, 431. See, also, Wyman v. Bowman, 127 Fed. 257; Boynton v. Haggart, 120 Fed. 819; Kelley v. Boettcher, 85 Fed. 55; Sabre v. United Traction & Electric Co., 156 Fed. 79; Walshe v. Dwight Mfg. Co., 178 Ala. 310; Fowler v. Alabama Iron & Steel Co., 164 Ala. 414.
In Hays v. Port of Seattle, 251 U. S. 233, 239, Pitney, J., in delivering the opinion of the court, says: “It is for the complainant in his bill to excuse the delay in seeking equitable relief, where there has been such; and if it be not excused his laches may be taken advantage of either by demurrer or upon final hearing. Maxwell v. Kennedy, 8 How. 210, 222; Badger v. Badger, 2 Wall. 87, 95; Marsh v. Whitmore, 21 Wall. 178, 185; Sullivan v. Portland, etc., R. Co., 94 U. S. 806, 811; National Bank v. Carpenter, 101 U. S. 567; Landsdale v. Smith, 106 U. S. 391; Hammond v. Hopkins, 143 U. S. 224, 250; Galliher v. Cadwell, 145 U. S. 368, 371-373; Hardt v. Heidweyer, 152 U. S. 547, 559; Abraham v. Ordway, 158 U. S. 416, 420; Willard v. Wood, 164 U. S. 502, 524; Penn Mutual Life Ins. Co. v. Austin, 168 U. S. 685, 696-698.”
Obviously the result of the . pleading in this case is to create an issue on the subject of laches. It is the equivalent of defendant expressly negativing the existence of the facts affirmatively alleged by the plaintiff in the fifth paragraph of his petition, with the added allegation that there
But the general rule also obtains that, “Regardless of whether the defendant is or is not required to plead laches in order to avail himself of the defense as a matter of right, it seems to be a general rule that the court may of its own motion deny relief to a party because of his laches even though it be not pleaded or urged by the adverse party.” 18 Standard Ency. of Procedure, 435. See, also, Richards v. Mackall, 124 U. S. 183; Godden v. Kimmell, 99 U. S. 201, 212; Sullivan v. Portland, etc., R. Co., 94 U. S. 806, 811; Marsh v. Whitmore, 21 Wall. (U. S.) 178, affirming 1 Hask. 391; Badger v. Badger, 2 Clif. 137, affirmed 2 Wall. (U. S.) 87; National Cash Register Co. v. Union Computing Machine Co., 143 Fed. 342; Calivada Colonization Co. v. Hays, 119 Fed. 202; Lakin v. Sierra Buttes Gold Mining Co., 25 Fed. 337; Leavenworth County v. Chicago, R. I. & P. R. Co., 18 Fed. 209; Credit Co. v. Arkansas Central R. Co., 15 Fed. 46; Gibson v. Herriott, 55 Ark. 85; Suhr v. Lauterbach, 164 Cal. 591; Stevinson v. San Joaquin, etc., Co., 162 Cal. 141; Chapman v. Bank of California, 97 Cal. 155; Lux v. Haggin, 69 Cal. 255; Harris v. Hillegass, 66 Cal. 79; French v. Woodruff, 25 Colo. 339, 352; Hagerman v. Bates, 24 Colo. 71; Crutchfield v. Hewett, 2 App. D. C. 373; Mayse v. Gaddis, 2 App. D. C. 20; Geter v. Simmons, 57 Fla. 423; Predestinarian Baptist Church v. United Baptist Church, 139 Ky. 110; Potter v.
We are also committed to the doctrine that, “Where the laches of the plaintiff and the staleness of his claim are apparent from the petition, objection may be taken by demurrer.” Hawley v. Von Lanken, 75 Neb. 597.
Then, again, we are committed to a rule of pleading entirely at variance with the contention of plaintiff as applied to the admitted facts of the present case. Thus, in Harrison v. Rice, 78 Neb. 659, the doctrine was announced by this court in the following language: “When the suit is brought within the time fixed by the analogous statute of limitations, the burden is on defendant to show the existence of circumstances amounting to laches. When the suit is brought after the statutory time, plaintiff must plead and prove that laches does not exist.”
In this connection it will be remembered that the transactions in suit occurred more than seven years prior to the commencement of the action. This fact invokes the application of the rule just quoted, and necessarily imposes on the plaintiff the burden of pleading and proving the absence of laches.
It follows that the issues of the statute of limitations and laches of plaintiff are properly presented by the record, and are to be determined by the facts established by the evidence.
Prior to January, 1925, and during the transactions involved in this litigation, Rolland F. Ireland was the secre
Baxter now testifies that he authorized Ireland to fill out these blank instruments, so signed by him, in the sum of $9,000 only, and his claim for recovery in this action is, in part, based on the absence of authority in Ireland to complete the same in the sum of $55,000, as well as Ireland’s violation of his instructions in reference to the disposition of that sum.
However, for reasons known to themselves, Baxter and Iréland endeavored to conceal the transactions evidenced by exhibits 6 and 7. Baxter said nothing concerning this matter to Weekes, his agent in full charge of his business affairs in Nebraska, and, as we will see, failed to enlighten him as to the true situation even when expressly inquired of concerning the same.
The blank note and mortgage with the Baxter signatures affixed were placed in the John W. Baxter file, kept for a time in Ireland’s office.
Though withdrawals from the loan company on the faith of the Baxter loans were commenced by Ireland, as Baxter’s agent, in May, 1924, and continued so that on August 22, 1924, they aggregated $39,646.73, exhibits 6 and 7 had not then been completed and the $55,000 loan at that time had not been formally set up as an account on
The record also discloses that, when this discovery of the $55,000 transaction was made, Rolland F. Ireland was temporarily absent, in Colorado. He was informed of the situation by his brother, who was then employed by the loan company in the capacity of a bookkeeper. On November 9, 1924, Rolland F. Ireland telegraphed to the president of the loan company, as follows:
“I have on file Baxter’s written authority for disbursement of all money and that is reason for indorsements. Might also say arrangements are made so that loan will be paid in full on or before due. Will show written authorization when see you.”
In due time Baxter’s two powers of attorney, executed May 3, 1924, were produced and submitted to the president of the loan company. In the meanwhile the president of the loan company had sought out Weekes, who he was informed represented Baxter and had charge of his business affairs in Nebraska. Weekes had no information whatever on the $55,000 loan. However, at the insistence of the president of the loan company, Weekes prepared a letter which, on November 11, 1924, by registered mail,
‘T received notice yesterday from some of the loan companies that there had been a second mortgage placed on the Pawnee county lands of $55,000 by the National Mortgage Loan Company of' Lincoln, Nebraska, or Mr. Ireland and associates.
“This mortgage was dated May 7, 1924, and signed by you at Lincoln, Nebraska, the amount being $55,000 and a mortgage on the twenty-five quarters, or all the land you have in Pawnee county. Of course, this is a second mortgage, and is due April 1st, 1925. That makes the land in Pawnee county, with the first and second mortgages, mortgaged for $196,000, or your land in Pawnee county is mortgaged for approximately $50 an acre. This new second mortgage of Ireland and associates of Lincoln draws eight per cent, interest from May 7, 1924, until April 1st, 1925, or $4,400 a year, then ten per cent, after maturity.
“I did not know just how much money you had received in Lincoln when you were there this last May, but was surprised at the $55,000 mortgage. The mortgage is made and then the numbers of the twenty-five quarters are pasted on it, which ties up your entire Pawnee county land. I do not know whether you received this amount of $55,000 or whether you left the amount to be filled in later and signed the mortgage, is the reason I am writing you. * * *
“This second mortgage of $55,000 to Ireland and his associates, or the National Mortgage Loan Company, * * * is to mature April 1st, 1925.”
A letter written by Baxter to Rolland F. Ireland at Lincoln, Nebraska, under date of November 11, 1924, concerning the above letter thus sent from Weekes to Baxter, and established by undenied evidence, is, in part, as follows : “I enclose copy of a letter which I received through
As to what Ireland’s instructions to Baxter on this subject were may be inferred from the fact that Baxter never answered this letter of November 11, 1924, from Weekes, and wholly failed to communicate the facts relating to the transaction to the loan company.
On November 15, 1924, a second letter from Weekes is mailed to John W. Baxter at his address in Greenwich, Connecticut, in which the $55,000 mortgage to the loan company is discussed. This letter was also received by Baxter, but he never answered it.
On November 22, 1924, after certain conveyances of lands owned by Baxter to Rolland F. Ireland had been recorded, Weekes telegraphed to Baxter requesting an immediate answer, and on the same day he mailed a letter to Baxter at Greenwich, Connecticut, confirming the telegram, and amplifying the statements contained therein. To these communications Weekes received no reply. Accordingly, at the solicitation of the president of the loan company, Weekes proceeded to Greenwich, Connecticut, to obtain a personal interview with Baxter. On his arrival he ascertained that Baxter had, after the receipt of Weekes’ first letter, departed for Chicago, Illinois. Weekes followed. In the annex of the Congress Hotel in Chicago Weekes met John W. Baxter in December, 1924, and his positive testimony as to the conversation then had between them is, in part, as follows:
(Answer to question 833) “I told Mr. Baxter that you (president of the loan company) told me to'find him and find out about this $55,000 mortgage. * * * 834. Q. Did you tell him what this $55,000 mortgage covered? A. It covered — (interrupted) 835. Q. I mean did you tell him that? A. Yes, sir. 836. Q. Explain what you told him in regard to what the mortgage covered? A. I told him it was a $55,000 mortgage on Pawnee county, that you had come to see me in regard to it, that it would be due in six months, that the mortgage was made in May; it wasn’t
The record also contains proof of the contents of a letter written by John W. Baxter from Chicago to Rolland F. Ireland, under date of December 10, 1924. In this letter Baxter said, in part:
“Weekes arrived in Chicago this morning and I have just finished a ten minutes talk with him, as he said he had a matter of great importance which he had heard of. * * * Mr. Hartigan had come to him to tell him that Mr. Ireland had placed mortgages on Mr. Baxter’s lands amounting to seventy thousand five hundred dollars ($70,500) and that Mr. Ireland had done this without the authority of the company and that they had fired him for it and that they would like to know if I had received the money as they had no receipt signed by me for it. * * * I merely gave him to understand he was telling me nothing.”
The record also contains an original letter, dated December 11, 1924, written by Rolland F. Ireland from Lincoln, Nebraska, to John C. Hartigan, president of the loan company, of Fairbury, Nebraska. This letter reads, in part:
“Mr. John W. Baxter has just written me saying that Mr. E. T. Weekes of Beatrice had been to Greenwich, Connecticut, to see him and he not being there Mr. Weekes had located him in Chicago. Mr. Weekes went to him and said that you had called on Mr. Weekes with reference to the company loan to Baxter and Weekes quoted you to Baxter as having said to him many disagreeable and unpleasant things concerning me. Knowing Weekes I cannot bring myself to believe that you made any such remarks, however, will be glad to talk with you concerning the same when I see you. * * * Mr. Weekes’ report made no impression on Mr. Baxter he simply wrote me about it thinking I should be advised.”
■The facts just recited certainly brought Baxter within the rule so aptly stated by Chancellor Kent, viz.: “When the principal is informed of what has been done, he must dissent, and give notice of it in a reasonable time; and if he does not, his assent and ratification will be presumed.” 2 Kent’s Commentaries, 616.
The $55,000 note and mortgage must now be considered
Preliminary to a consideration of the disposition of the $46,000 of the proceeds of the $55,000 loan, we are met with a challenge by plaintiff to the admissibility in evidence of defendant’s exhibit 2. This is a report of an audit of the loan company for the period from January 1, 1924, to December 31, 1924, made by Campbell, Myers and Marsh. It comprises 78 typewritten pages. A number of entries contained in this exhibit were first offered and received in evidence by plaintiff, including “exhibit 2 at page 72.” Thereafter, upon proper foundation laid the following offer of proof was made by the defendant: “The defendant offers in evidence the book as a whole not because, — only for the purpose of indicating the page and especially page 72, being exhibit 107.” To this offer a general objection was made which the court overruled. The bill of exceptions recites that exhibit 2, containing exhibit 107, was received in evidence. The order of the court itself expresses no limitations imposed on its admission. The use by the defendant of exhibit 2 as evidence generally is now challenged by plaintiff. Section 20-1215, Comp. St. 1929, would seem conclusive against plaintiff’s contention.
Apart from statute, the approved practice is: “Evidence which is admitted generally is in the case for any legal purpose for which it is admissible, although the evidence, when introduced, was intended for a particular purpose.” 64 C. J. 137.
In Sill v. Reese, 47 Cal. 294, it was held that counsel is
When evidence is admitted without qualification, it is in the case for all legitimate probative purposes. Its effect is not to be limited to the precise purpose for which it was stated to be offered. Booth Bros. & Hurricane Island Granite Co. v. Smith, 115 Me. 89. See, also, First Nat. Bank v. Union Hospital, 281 Mass. 64; Malkowski v. Olfs, 161 Mich. 303.
Exhibit 2, having been admitted by the trial court without qualification, must be deemed to be in the case for all legitimate probative- purposes. So treated, exhibit 2 commences with a “trial balance” of all the property and obligations of the loan company at the commencement of 1924 and closes with a trial balance reflecting its condition at the termination of that year. The correctness of these trial balances is unquestioned. Exhibit 2 sets forth an itemized statement of all items of business transacted by the loan company during the year, and among other items sets out the cash receipts and cash disbursements during the year. Among the cash disbursements thus set forth are more than $50,000 of the proceeds of the $55,000 Baxter mortgage. On this basis the trial balance at the end of the year checked against physical assets in posses
It would appear that the situation of the loan company in the instant case is quite analogous to the not unusual situation which arises in the business world when the cashier or other executive officer of a commercial bank occupying an outside position of trust keeps these trust funds so received, properly designated as such, on general deposit in his own bank. “Banks should not be required to supervise and scrutinize withdrawals by depositor having account in trust capacity.” Martin v. First Nat. Bank, 51 Fed. (2d) 840.
In 5 Michie, Banks and Banking, 131, sec. 57c, the following appears: “In the absence of notice or knowledge that a breach of trust is being committed by an improper withdrawal, a bank cannot question the right of its customer to withdraw funds, nor refuse to honor his demands by check; and, therefore, even though the deposit is to customer’s credit in trust, the bank has no obligation to
These principles were approved by this court in State v. Farmers & Merchants Bank, 112 Neb. 840. In that case the cashier of the bank was also administrator of an estate, and had deposited the estate funds in his bank. With these facts before us we announced the doctrine: “Where money is deposited in a bank to the credit of an administrator of an estate, the bank is charged with notice of the trust character of the fund, but is not required to see that the same is properly applied or accounted for, in the absence of notice, or knowledge of facts putting it upon inquiry, that the money is being misapplied. In such case, where the fund is withdrawn upon checks of the trustee, signed in his official character, the responsibility of the bank with regard thereto is ended.”
In the case just quoted from we also held that the cashier, Berge, “was the agent of the bank; he was also agent of the estate. While acting for either ■ principal his knowledge would be imputed to that principal; but, when he acted as administrator, his knowledge gained in that capacity could not be imputed to the bank.”
By parity of reasoning, what Ireland did as agent for Baxter under the facts in the instant case was not imputable to the loan company. It therefore follows that the proceeds of the $55,000 loan having been wholly withdrawn by Ireland, under powers conferred on him by the written power of attorney, plaintiff’s action must fail.
However, it is plaintiff’s theory that one check in the sum of $17,000, which is shown as drawn to Baxter’s order, was indirectly appropriated by the loan company. It is established that in 1924 the loan company owned a $13,000 real estate mortgage given by Thomas Shanley; that the Federal Trust Company paid the Shanley mortgage to defendant (then controlled by Ireland) on February 26, 1924. This total amount was $14,137.50. It was not credited on the books of the loan company until
It would seem that the case of State v. Farmers & Merchants Bank, 112 Neb. 840, would negative imputed notice under the facts in this instant case. But, passing this point, it must be conceded that at the conclusion of the transaction the loan company had no property in its possession in excess of the just amount it would have been entitled to, had Ireland honestly transacted the business placed in his care. It is equally obvious that the concealment was such that without the aid of Baxter the discovery of the fraud practiced by Ireland, if such there was, was impossible. Baxter was frequently importuned for information but wholly failed to impart the necessary facts which would have resulted in discovery. Yet, if plaintiff’s theory is correct, Ireland’s dishonesty and treachery, aided by the wilful concealment on the part of Baxter,, will unjustly operate to deprive the stockholders of
Aside and apart from the reasons already suggested, which necessitate a denial of recovery by plaintiff, it would seem that he is barred by the statute of limitations as well as by the doctrine of laches. As heretofore shown, the information actually communicated to Baxter, as early as December 10, 1924, was ample to put him on inquiry, and there can be no question that to Baxter the means of knowledge were at hand. The rule is: “Whatever fairly puts a person on inquiry is sufficient notice, where the means of knowledge are at hand; and if he omits to inquire, he is then chargeable with all the facts which, by a proper inquiry, he might have ascertained. This, in effect, means that notice of facts which would lead an ordinarily prudent man to make an examination which, if made, would disclose the existence of other facts is sufficient notice of such other facts.” 20 R. C. L. 846, sec. 7.
It is beyond question that a mere statement to the officers of the loan company, after November 15, 1924, to the effect that the $55,000 note and mortgage had been completed in violation of the instructions, and that excepting as to the $9,000 note Baxter had not authorized the disbursement of the proceeds of the loan and had actually received no part thereof, would have enabled all parties to secure proper protection. Baxter was informed that proceeds of this loan had been disbursed by Ireland’s direction, whom he had constituted his attorney-in-fact, and a mere inquiry to the president of the loan company would have brought complete information and full particulars as to date, amount, and by whom such disbursements had been made. This silence Baxter maintained for more than seven years after he became chargeable with actual knowledge.
It is submitted that “The principal cannot be justified in wilfully closing his eyes to knowledge. He cannot remain ignorant' where he can do so only through intentional obtuseness. He cannot refuse to follow leads, where his
In 1924 the loan company had a bond in the sum of $50,000 covering the acts of Rolland F. Ireland, its secretary-treasurer. If the theory of the transaction here in suit, now advanced by the plaintiff, is true, this bond in 1924 afforded ample indemnity for all possible losses. The seven years of silence of plaintiff has operated to bar all possible recovery on this obligation. Fraud forms an essential element in plaintiff’s case. On this point the controlling principle is: An action for relief on the ground of fraud may be commenced only within four years after a discovery of the facts constituting the fraud or of facts sufficient to put a person of ordinary intelligence and prudence on an inquiry, which, if pursued, would lead to such discovery. Parker v. Kuhn, 21 Neb. 413; Wright v. Davis, 28 Neb. 479; Cole v. Boyd, 68 Neb. 146; Davis v. Willey, 273 Fed. 397; 37 C. J. 838.
The proceeding instituted by plaintiff is one in equity. The facts in the instant case invoke the application of the following doctrine: Courts of equity have inherent power to refuse relief after undue" and inexcusable delay, independent of the statute of limitations, and in applying the doctrine of laches the true inquiry should be whether the adverse party has been prejudiced by the delay in bringing the action and whether an unreasonable excuse is offered for the delay. Hawley v. Von Lanken, 75 Neb. 597; Eastern Banking Co. v. Robbins, 97 Neb. 318; Criswell v. Criswell, 101 Neb. 349; 10 R. C. L. 395, sec. 142, and p. 406, note 21.
That the defendant has been prejudiced by plaintiff’s delay cannot be denied, and the only real excuse offered— lack of knowledge — has been wholly disproved. It follows
The judgment of the district court is, therefore, reversed and the cause dismissed at the costs of the plaintiff. .
Reversed and dismissed.