Commercial Credit Co. v. Nissen

181 N.W. 99 | S.D. | 1921

WHITING, J.

Plaintiff, as the indorsee of five promissory notes given by defendant to the Interstate Tractor Company, sued to recover upon said -notes. Defendant alleged, among other things, a total want of consideration for -said notes. At the close of the evidence both parties moved for directed verdict, and the court directed a verdict for defendant. From the judgment entered thereon and from an order denying a new trial this appeal was taken.

As we view the questions before us, it becomes unnecessary for us to 'consider any assignment of error, except the one assigning error in the court’s refusal to grant a new trial upon plaintiff’s showing of newly discovered evidence. To sustain his defense of no consideration defendant testified that he executed 50 notes of $1,072 each, of wfiicb 15 were-payable in 5^2 months, 20 in 6 months, 5 in months', and the maturity of the other 10 not shown; that the notes sued on herein were the 5 due in, 6^ months; that each separate note represented the purchase price of a tractor to be shipped by the payee to him; and that the said payee failed to ship the 5 tractors for which these particular notes were given. Defendant conceded that 33 of the tractors, for which the 35 notes first due were given, were shipped and received 'by him. Plaintiff contends that this was an indivisible transaction, and that the defendant received at least 33-50ths of the agreed consideration for the notes. In order for the trial court to direct a verdict for the defendant, it was necessary for such court to have found with defendant on his claim of no consideration for the notes. The alleged newly discovered evidence bears upon such defense. Plaintiff is a foreign corporation, and the affidavit supporting the motion for a new trial was that of its attorney, resident in this state. From such affidavit it appears that since the trial of thlis action an action! has been tried in the federal court in this state, wherein the First National Bank of Waterloo, Iowa, was plaintiff and the defendant herein was defendant, in which action said bank sought to recover from defendant a sum of money upon a paper given by defendant to the tractor company as partial consideration for a full settlement of the claims of such company against defendant. It appears that upon the trial of said cause there was received in evidence certain correspondence that had passed between defendant and the Waterloo bank representing the tractor company, and between the Waterloo bank and its banking correspondent at Aberdeen, S. D. This was correspondence had in connection with and leading up to the settlement above referred to. From sudh correspondence it would appear that the tractor company was holding a number of the notes given to it by defendant, as well as several bills of lading with drafts against defendant attached thereto, and several trade acceptances executed by defendant; that said tractor company, through said banks, sought to obtain a settlement whereby defendant was to give, in full settlement of all these claims, certain trade acceptances and a certain sum in cash; that among the notes which the tractor company claimed to hold against, defendant, and which it sought to include in such settlement, were notes aggregating $5,360; that the Iowa bank,- representing that these notes were lost, agreed to protect defendant again-st them if he would settle for same; that the Aberdeen bank ascertained that these notes, so represented to be lost, were the notes in suit in this action and were tiren in the hands of the plaintiff’s attorney for collection; that such bank advised the Waterloo bank of that fact; and that a settlement was finally effected, under which the amount of said notes w¡as deducted from the cash payment that was -otherwise to have been made by defendant.

[ 1 ] While the correspondence introduced upon the trial in the case in the federal court consisted mostly of letters written 'by the banks, none of which would perhaps be admissible in this case against defendant, yet the trial court should have presumed that the authors of such correspondence would, if called as witnesses, testify in accordance with the contents of such correspondence. Defendant might have declined to include these notes in said settlement upon the ground that they were wholly without consideration; but it does not appear that any such claim was made in reaching su'ch settlement — the only reason appearing for excluding them being that they w'ere held by a third party. We therefore think that the facts disclosed upon the trial of this case might well defeat defendant’s claim that there was no consideration for the notes now in suit. The trial court should have granted a new trial to give plaintiff an opportunity to produce evidence of these facts.

[2] Respondent contends that there was no proper showing of diligence on the part of plaintiff in seeking to procure evidence in relation to such settlemlent, and that there was no showing that the corporation itself was in ignorance, at the time this action was tried, of the facts disclosed upon such settlement. We think there is no merit in either of these contentions. Plaintiff! w'as a foreign corporation with no officers in this state, and the collection of these notes had been intrusted to its attorney resident at 'Aberdeen. It appears that this attorney, prior to the trial of this cause, heard rumors that a settlement was being made ’ between defendant and the tractor company, through the Aberdeen bank. I-Ie sought information from both the defendant and tire 'bank in relation thereto, but was given to understand that the settlement 'had fallen through. He also wrote the tractor company and received no answer. He relied upon the information received from the bank and knew nothing to the contrary until the trial in the federal court, which occurred after the trial of the cause now before us.

[3] It is contended that plaintiff should have procured and presented upon its 'motion for a new trial the affidavits of the several persons whom- it would desire to produce as witnesses at such new trial. It is not to be presumed that officers of the banks, or that defendant, would voluntarily make affidavits as to the information- possessed; and we believe that, when such attorney attached to his affidavit certified- copies of the correspondence which had been -identified and received in evidence -upon the trial in the federal court, it presented sufficient evidence upon which the trial court was warranted in concluding that it could and would, if granted opportunity, procure proper evidence of the facts disclosed by such correspondence.

The -judgment and order appealed 'from are reversed.