34 Mich. 304 | Mich. | 1876
The important facts in this case are the following:
At the beginning of July, 1871, complainant was owner of real estate subject to certain incumbrances, among which was a mortgage of one thousand dollars, held by one Mrs. Mc-Ginnis. This mortgage was past due, but payment was not demanded. The mortgage year ended October 20th in each year. Being desirous to pay off these incumbrances, he entered into a negotiation with the defendant for a loan of two thousand dollars. It appears that one Latourette, a banker at Fenton, was indebted to- defendant in the sum of ¡several thousand dollars, and the money, if loaned, was expected to be obtained from him. Defendant called on Latourette, who informed him that lie could not well pay two thousand dollars at that time, and inquired whether a part of that amount would not answer. Defendant on inquiry •ascertained that Mrs. McGinnis did not care for her money before the mortgage year had expired, and he informed Latourette of this fact. It was finally arranged that Latourette should pay one thousand dollars at that time and give -a certificate of deposit for another thousand, upon which the money should not be called for until October 20th following, when it would be needed to pay the McGinnis mortgage. What followed between these parties is shown by their testimony, which is here given.
Complainant testified: “Before the papers were made I went with Bangs to Latourette’s bank, and Bangs informed Latourette that we were going to make the arrangement, and we then went to Smith’s office to make the papers. I was to liave the one thousand dollars then. I objected to giving .the mortgage for two thousand dollars, not receiving but one thousand dollars. I proposed to give the mortgage for one
The following is a copy of the certificate:
“D. L. Latourette, successor of the First National Bank of Fenton, Michigan.
“Fenton, July 6, 1871.
“B. Bangs has deposited in this bank one thousand dollars, payable to the order of D. Burrows when Mrs. L. D. McGinnis shall discharge a certain mortgage on said Burrows’ farm, on the return of this certificate. Interest ten per cent.
“$1,000. (signed) D. L. Latourette.”
The testimony of Mr. Bangs was as follows:
“I made an arrangement to loan the complainant some money in July, 1871. I first had conversation in the early part of July that year. Complainant applied to me for the loan of two thousand dollars to be secured by a mortgage on his farm. I inquired in reference to any other incumbrance that might be on the place, and stated my unwillingness to loan the amount on his farm unless it was free from all incumbrances. I received this assurance, that although there was then a mortgage of six hundred dollars and another of one thousand dollars, it should be all cleared with this money he wished to loan of me. The six hundred dollar mortgage he said could be taken up very soon, or on the receipt of the money, or words to that purport.*310 I am not positive as to the words used. Mr. Burrows said to me at one time in conversation, that Mrs. McGinnis asked him why he took money of Mr. Bangs and agreed to pay him ten per cent, interest, while that was all he was }oaying either before or after this. I went on after getting the conditions that have been testified to here, and we talked the matter over of loaning the money. Mr. Burrows and I went to the bank together and found Mr. Latourette there, and I made arrangements to loan complainant two thousand dollars at ten per cent, interest on a mortgage on his farm, being the mortgage in question. He was to receive four hundred dollars in cash and a deposit of six hundred dollars in the bank to remove the six hundred dollar mortgage, and a further deposit of one thousand dollars to remove the one thousand dollar mortgage. I paid him four hundred dollars, or Mr. Latourette did by my direction, and placed six hundred dollars more at his disposal to pay the six hundred dollar mortgage, and one thousand dollars more at his disposal, as conditioned in the certificate, being the certificate in question. As near as I can recollect, it was talked between Mr. Burrows and I that one thousand dollars, when it was drawn from the bank, should go to pay that McGinnis mortgage. This is the substance. Nothing was said about my retaining any interest in that .thousand, only that it was to go to pay the McGinnis mortgage and to make my security good on the farm. At the time I went to the bank that day to get the money, Mr. Latourette owed me five thousand seven hundred and two dollars and sixty-six cents, including interest.”
These statements, which were not materially varied on cross-examination, are sufficient to enable us to understand the transaction. Latourette failed October 9, 1871, and one or the other of these parties must lose the amount of the certificate referred to. Complainant has paid back the one thousand dollars received by him from defendant, with the interest thereon, and tendered to defendant the certificate, and now demands a discharge of his mortgage, on the ground
It is plain that there was no express agreement that complainant should receive the certificate as payment; but. defendant insists that it is a fair inference from all the circumstances that such was the understanding, and he places some reliance upon the fact that he afterwards settled with Latourette on the basis of' a credit to the latter for this sum, as showing that such was his own understanding. But this, we think, proves nothing, as Latourette should have been credited with the amount of the certificate while it was outstanding, no matter who owned it. He also showed an attempt by complainant to obtain payment of the certificate before October 20, 1871, as furnishing some evidence in the same direction; but this was just as consistent with one view as it was with the other. In short, we do not find any circumstances in the case which' tend to throw light upon the understanding of the parties, except those which attended the original transaction.
And we think it is not a fair inference, from the original arrangement as detailed by the parties, that complainant was to receive the certificate, wait for payment upon it. until the 20th of October following, and be himself at the risk of collection. The transaction appears to have been this: Complainant wanted the two thousand dollars to pay off certain debts. Defendant was willing to loan it to him-, but could only obtain for the purpose one thousand dollars in cash and the paper of his debtor for another thousand, payable at a future day. Complainant .could and did arrange so .that this payment at a future day should answer his purpose. But nothing can be plainer than that it was not understood that the mortgage of defendant, was, to- be a valid
We are of opinion that defendant’s mortgage is satisfied.
But as there has been an honest difference between these
The decree of the court below must be reversed, and decree be entered in this court declaring the mortgage satisfied. Complainant will recover the costs of both courts.