172 N.W. 66 | N.D. | 1919
Lead Opinion
The plaintiffs sued the defendants, the appellants herein, upon an order which reads as follows:
Merricourt, N. D., Jan. 2, 1917.
Sweeney & Hyde,
Merricourt, N. D.
Please pay Clow and Hendricks three hundred and thirty dollars $330 upon your collecting that certain note and mortgage held by you against Christ Biederstedt for $2,000 due 11-15-17, a lien on S.W.-j- and N.E.¿ 32 and S.W.¿ 33 — 132—64, Dickey County, N. D.,
The Webb-Stout Company,
By George T. Webb, Y. P.
George T. Webb;.
We accept above order.
Sweeney & Hyde.
The defendants in their answer set up lack of consideration for, and fraudulent representation in the securing of, such order. In the district court upon a trial of the action, a verdict was directed for the plaintiffs, and, from the judgment rendered thereupon, the defendants appealed. Among the specifications of error, the appellants principally challenge the ruling of the trial court in so directing the verdict, upon the ground that the question of the lack of consideration was for the
In the record there is evidence tending to show that the assignors at one time owned a promissory note made by the defendants; that this note was sold to a bank by the assignors prior to the order herein; that the assignors, representing to the defendants that the note was lost and that they were about to go into the hands of a receiver, procured the consent of the defendants to accept the order herein given to the plaintiffs; that at the time the plaintiffs received such order, the assignors were not indebted to plaintiffs, received nothing for such order, but on the contrary the plaintiffs were indebted to assignors for some insurance; the trial court directed a verdict upon the theory that defendants had failed to establish any fraudulent representations, wholly ignoring the defense of want of any consideration between the assignors .and assignees, and between the debtors, the defendants, and the assignors, as plead by the defendants.
As assignees, it is well settled that the plaintiffs possessed no greater rights against the debtor than the assignors had. 5 C. J. 961; Comp. Laws 1913, § 7396; Emerson-Brantingham Co. v. Brennan, 35 N. D. 94, 159 N. W. 710; 2 R. C. L. 630, 631.
Although the assignment itself furnished, prima facie, a consideration sufficient to support an action upon the original promise of acceptance by the debtor, and although ofttimes the question of the consideration paid by the assignee is immaterial in an action upon assignment, yet the. want of the consideration is a defense in an action upon an accepted order, where it is shown that there existed at the time of making such order and acceptance an entire want of consideration both as between the assignors and the assignees, and as between the debtors and the assignors. 5 C. J. 840, 938, 963; 4 Century Dig. 1291, 1311; Palmer v. Palmer, 112 Me. 149, 91 Atl. 281; Bank of Harlem v. Bayonne, 48 N. J. Eq. 246, 21 Atl. 480; Comp. Laws 1913, § 7396.
The trial court therefore erred in directing a verdict. It is unneces
Dissenting Opinion
(dissenting). As the amended answer avers, on November 15, 1910, the defendants Sweeney & Hyde made to Webb-Stout Company a promissory note for $250, due in one year. There is no claim that the note was not made for full and fair value; there is no claim that it was ever presented for payment by any person; there is no claim that it was ever paid, except by the giving and acceptance of the order in question. Webb-Stout & Company do not intervene or claim that the order was not given for value. A written instrument is presumptive evidence of a consideration. Section 5880. The burden of showing want of consideration sufficient to support a written instrument lies on the party seeking to invalidate or avoid it. Section 5881. The answer does not aver or state any facts to show that the order was made to the plaintiffs without consideration. So far as there is any defense, it relates only to the acceptance of the order. The answer avers that the $250 note was given by Sweeney & Hyde to Webb-Stout Company for a commission loan made by them, and that the note was transferred to the Farmers Bank of Merricourt. But the note is now outlawed, and there is not a word of testimony that the bank ever presented the note or made any claim under it. The answer does not aver that the bank ever asserted any claim under the note. If the bank or any party had asserted a claim to the note for which the order was given, the proper course was for the defendants to have impleaded the bank as an intervener. Section 1414. Defendant Sweeney is the party who signed the acceptance, agreeing to pay the order in lieu of the note. He testifies to the making of the note and acceptance of 'the order. He testifies the order was accepted at the request of George Webb of the firm of Webb & Stout. He says: “Webb asked me to pay the note or to sign the order. Webb said the note was lost. He wanted me to sign an order to pay the note or the money over to Hendricks. The note was for $250; the order for $330. He figured the interest, and had added it and said that was the accrued interest. I
“George Webb was an officer of the Farmers State Bank of Merriuourt. The note has never been paid and it has never been presented.”
By the Court: “Q. The order was given in payment of the note? A. Yes.” (12).
Thus it conclusively appears there was no objection to the lost note; the acceptance was given in payment of the note; it was given at the request of George Webb, an officer of the Webb-Stout Company and of the State Bank of Merricourt. Under the evidence it is manifest the defense was a mere sham. There was no question to go to the jury. The verdict for the plaintiff was properly directed.
