2 N.D. 195 | N.D. | 1891
The defendants having obtained judgment below, the plaintiff appeals. The note sued upon was executed by defendant Eoberts, and the payment thereof was guaranteed by defendants Hanson & Osgood. It was the' last renewal of a note given by defendant Eoberts to Hanson & Osgood for wheat sold by them to her. They desiring to turn the original note into cash had it discounted by the plaintiff, they guaranteeing the payment of it. All of the renewal notes were likewise guaranteed by them. One of the defenses was payment. It appears that in' the month of August, 1886, the plaintiff held a large amount of paper on which the defendant Eoberts was liable. About this time Mrs. Eoberts secured a loan of $20,000 on her real estate from M. B. Erskine. The understading was that the proceeds of' this loan were to be paid to the bank, and applied in extinguishment of her indebtedness to the bank so far as the money wcmlcL apply. This indebtedness was somewhat in excess of $20,000. While negotiations for the loan were progressing, the husband of Mrs. Eoberts, who was agent for her in these transactions, stated to the president of plaintiff that the note sued upon in this action must be paid out of this money. He also testifies that he never changed this application of the money, and that he did not know that the plaintiff had disregarded his instructions until the summons was served in this action. It is true that there is a conflict in the evidence on this question. The cashier, Mr. Lyon, states that he and Mr. Eoberts went over the notes to be paid, and that he told Mr. Eoberts that the plaintiff was not willing to cancel the note in question, and that Mr. Eoberts consented that it should not be canceled. It would not be urged here that the verdict of the jury should be disturbed if there was any substantial denial of Mr. Lyon’s statement, but it is insisted that there is no issue in this respect. Mr. Eoberts, when interrogated on cross-examination about this alleged conversation, stated that he did not recollect anything of that kind; that he did not think that he and Mr. Lyon went over the notes; that he did not recollect it. The jury have found that he did not recollect such conversation. This is surely evidence from which the jury might find that such
Some time after the receipt by the plaintiff of the proceeds of this $20,000 loan, the money being paid directly to the bank by the lender, and not by Mrs. Roberts, she was in the bank, and Mr. Lyon, the cashier, handed her a package of notes, rolled up and fastened with a rubber band, saying to-her at the time, “Here are the notes which the loan was made to take up.”
It is further urged that the answer of defendant Roberts is insufficient because it avers payment upon information and belief; and it is therefore insisted that the trial court should have given j udgment against defendant Roberts on the pleadings, there being no other defense set up and all the material averments of the complaint being admitted. In this connection plaintiff cites cases which hold that a denial of any information sufficient to form a belief of alleged facts, of the existence or non-existence of which it is possible for the defendant to make himself personally acquainted — as whether a certain record exists— is not a good denial. These decisions are, doubtless, sound. It being in the power of the defendant to deny positively and of his own knowledge the fact alleged in the complaint, in case it does not exist, his failure to make such positive denial is very properly taken as an admission of its existence. The courts will not suffer a litigant to close his eyes, and, hiding behind the forms of the law, delay the administration of justice. Such a denial, under such circumstances, is a palpable fraud. But the defense of payment is not necessarily within the knowledge of the debtor. In this day, when a vast volume of business is conducted by agents, payments are often made by agents without the personal knowledge of the principal. To allege such a payment in positive form would be reprehensible. The principal would be guilty of perjury. He would state that he had personal knowledge of that of which he knew he did not have personal knowledge. He must aver payment, under such cir