106 N.W. 550 | N.D. | 1923
This is an action on -a promissory note for $3,000 executed December 20, 3 919, payable to the order of F. B. "Wood and by him transferred to the Scandinavian American Bank of Fargo. The
The appellants contend that the lower court erred in sustaining •objections to certain testimony which they claim had a direct tendency to prove a conspiracy. Through these rulings the defendant was prevented from showing that Wood and other officers of the League Exchange had misused notes similar to the iiat-thys’ notes. It is argued that the defendant should have bc-en permitted to introduce evidence to prove a general conspiracy to defraud those from whom it was possible to obtain notes such as the Alatthys’ notes — the fraud consisting in the obtaining of the notes for an ostensible purpose which would appeal to an adherent of the league and, after obtaining them, using them for the purpose of giving credit to some one of the various league enterprises. The record discloses that the fullest inquiry was permitted into all the transactions between the bank and the defendant, •which resulted in the giving of the note in question. It appears from the defendant’s own testimony that he gave the original note for the purpose of strengthening the showing of the bank’s assets, which were weakened or at least objectionable on account of comprising a large amount of small notes and postdated checks originating in Nonpartisan League enterprises of one sort and another. The reasonable interpretation of his testimony is, then, that his note was to be used as ostensibly supporting those assets; that, if necessary, it was to be shown to the supreme court as so supporting them. Obviously, it could not be thus used without appearing as an asset of the bank (First Nat. Bank v. Davidson) 48 N. D. 944, 188 N. W. 194, which the bank either owned or which it could enforce as collateral. It does appear that the $5,000 note was used directly for the purpose of wiping off the books of the bank an overdraft of the League Exchange for $2,482.62, which was later paid, and that the $3,000 note was used indirectly in behalf of the Publishers’ National Service Bureau. But it is not the circumstance of such a note being- so used or misused that renders the maker liable thereon in a suit such as the present; hence the fraud, if
We do not deem it necessary to comment at length upon the various assignments of error that are argued in the brief. Suffice it to say that they are disposed of in what has been said above, as it must be apparent,, in the view we take of the appellant’s liability, that he could not be: prejudiced by the rulings on evidence complained of, nor by the instructions concerning the burden of proof as between a bolder in due course and a maker, nor by the statement of the trial court regarding conspiracy. AYc deem it proper to say, however, -that this case was tried in the lower court and the appeal to this court prepared for submission before the announcement of the decision in Vallely v. Devaney,
The judgment and order appealed from are affirmed.