9 S.D. 585 | S.D. | 1897
This is an action to recover $37,000, claimed by plaintiff to be due him from the defendant as the result of certain business transactions set out in plaintiff’s complaint. The defendant, in addition to certain denials, pleaded
Between 1878 and 1893, the plaintiff made numerous farm loans in Dakota, which the referee finds were made under the following understanding or agreement between the plaintiff and defendant: “That in the latter part' of the year 1878 the plaintiff saw the defendant at defendant’s office in said city of Milwaukee, and there had a conversation with him concerning the making of farm loans in the then territory of Dakota, the result of which conversation was that the defendant gave to plaintiff a number of blank applications for loans, with directions to plaintiff to procure and forward to defendant some applications for loans * * * and stated to plaintiff, that if satisfied with such applications, he would send plaintiff funds with which to make such loans as defendant should accept from among such applications; and further stated to plaintiff that upon the application so accepted and filled by the defendant the plaintiff should allow the defendant such portions of the commissions received upon said loans from the borrowers as plaintiff should think fair; and if thereupon defendant was not satisfied with what plaintiff allowed the defendant as commissions, the plaintiff would hear from the defendant concerning the same.” The plaintiff also furnished farm lands for defendant, which the referee finds were purchased under the following agreement: ‘ ‘That some time subsequent to the arrangement between the plaintiff and defendant for making loans as aforesaid, the defendant requested the plaintiff to purchase for the defendant farm lands in the territory of Dakota, whenever the plaintiff should have an opportunity to purchase the same
Appellant relies for a reversal of the judgment in this case upon three grounds, namely: (1) That the allegations id the
The next contention of .appellant is that there was no conversion of the commission notes and mortgages, and that the
The appellant contends that the assignee only acquired the interest of the defendant in these notes and mortgages by the assignment, and that the plaintiff’s remedy is against him, and the plaintiff ,mav assert his right also against the property in the hands of the assignee. We do not deem it necessary to decide either of these questions in this case. Assuming, as contended, that plaintiff might have a right of action against the assignee, and might have a remedy as against the property, still the plaintiff retains his remedy as against his co-tenant. The law does not impose upon the plaintiff the duty of proceeding against the assignee or the property. When the defendant transferred these notes and mortgages to the assignee unconditionally, and put them beyond his control, he, in law, converted them, and became liable to the plaintiff for the value of his interest therein in an action against him. We are of the opinion
It is also contended that the referee erred in finding for the plaintiff one-half of the face value of the notes and mortgages But, in the absence of evidence on the part of the defendant as to their real value, it was the duty of the referee to find for their face value. Sec. 4615, Comp. Law's, provides that “for the purpose of estimating damages, the value of an instrument in writing is presumed to be equal to that of the property to which it entitles its owner. ” The amount, therefore, appearing tobe due upon the notes and mortgages, will, in the absence of proof to the contrary, be presumed to be the amount of money the notes and mortgages were given to secure. Cosand v. Bunker, 2 S. D. 294, 50 N. W. 84; Holt v. Van Epps, 1 Dak. 217, 46 N. W. 689; Booth v. Powers, 56 N. Y. 22; Thayer v. Manley, 73 N. Y. 305. Finding no error in the record, the judgment and order denying a new trial are affirmed.