134 Minn. 387 | Minn. | 1916
It appears from the pleadings and evidence in this case that at the time of the transaction in issue defendant was engaged in the plumbing and heating business at the city of Hibbing, with a branch establishment at Chisholm, a city not far from Hibbing, in St. Louis county. One Neally was engaged in the construction of a large hotel building at Chisholm, and defendant entered into a contract to install the heating plant therein. The contract was completed early in June, 1909, and the value of the labor, and of the material furnished by defendant, was agreed upon at $4,166. Neally was apparently without ready money and unable to pay in cash. Defendant understood this before entering into the contract, and he laid the matter before the president of plaintiff, and secured from him an agreement to discount Neally’s promissory notes to be executed after the completion of the work, properly indorsed by defendant. On June 3, 1909, after the completion of the contract, Neally executed and delivered to defendant his several promissory notes for $200 each, aggregating the amount due under the contract, payable to defendant at the time stated in each. Defendant carried an account in plaintiff’s bank at Hibbing, and also an account in the Miners’ State Bank at Chisholm. He desired the proceeds of the notes to be deposited to his credit in the latter bank, and arrangements were made to that end. He presented the notes indorsed by him in blank, to that bank, and upon authority communicated from plaintiff they were accepted and defendant’s account credited with the full amount thereof, namely, $4,166. Whereupon the Chisholm bank transmitted the notes to plaintiff, and was by plaintiff credited upon its books with the same amount.’ The Chisholm Bank had no pecuniary interest in the trans
Defendant interposed in defense: (1) That the indorsement upon the renewal notes by which defendant became a guarantor of payment was procured by the fraud of plaintiff; and (2), that a mortgage given by Neally to secure the payment of the original notes was delivered with the notes when negotiated, which plaintiff agreed to have recorded, and negligently failed and neglected to do so, whereby defendant lost the security by reason of other mortgages being placed upon the property, the whole amount of which exceeded the value thereof.
The action was tried with a jury and a verdict was returned for defendant which, on plaintiff’s alternative motion, was vacated, and judgment for plaintiff ordered notwithstanding the same. Defendant appealed.
It is contended by defendant: (1) That the question whether the indorsement of a guaranty of payment upon the back of the notes was procured by fraudulent representations was one of fact, that the verdict is supported by the evidence, therefore that the trial court erred in ordering judgment in plaintiff’s favor; (2) that the evidence disclosed an express agreement on plaintiff’s part to record the mortgage securing the payment of theynotes, and that its failure to do so released defendant from his guaranty; and (3) that the obligation to record the mortgage for the protection of defendant was imposed upon plaintiff as a matter of legal duty, even in the absence of an express or implied agreement to
Order affirmed.