76 Minn. 183 | Minn. | 1899
The defendant the David 0. Bell Investment Company demurred to tbe complaint herein, which was sustained. The plaintiffs appealed, and tbe order was reversed by this court. Hale v. Dressen, 73 Minn. 277, 76 N. W. 31. Tbe remittitur was sent down, and there
No question of discretion on the part of the trial court is involved in the appeal, and the sole question is whether the answer states a defense. An answer to this question involves an analysis of the complaint and proposed answer. The material facts alleged in the complaint, briefly stated, are these:
■ Alfred W. Haven, by a trust deed, which is made a part of the complaint, conveyed to two trustees certain property in trust, to manage, invest, and reinvest for the use of the beneficiaries therein named. One of the trustees died, and the survivor, William H. Hollins, managed and controlled the trust estate during the time mentioned in the complaint. On March 12, 1892, the defendant Derrick H. Dressen executed to William H. Hollins, as trustee of the estate of Alfred W. Haven, his promissory note, and thereby, for value received, promised to pay to such trustee, or order, $1,800 on March 12, 1897, with interest, payable semiannually, at 6 per cent, per annum, and secured the payment of the note by a real-estate mortgage. The defendant the David O. Bell Investment Company, prior to the delivery of the note, for the consideration in the note named, guarantied, by a writing on the back of the note, signed by it, the payment of the interest on the note as it accrued, and of the principal thereof within two years after its maturity. The trustee, before the maturity of the note, and on January 23, 1894, executed to the investment company a release, under seal, purporting to discharge it from the guaranty of payment; but no consideration was paid for such release, and none has ever been received by any of the trustees of the Haven estate or the beneficiaries. The beneficiaries never authorized or consented to the making of the release, and, upon hearing of it, this action was brought for its cancellation.
The answer admits the execution of the note and mortgage, and the guaranty of payment by the investment company, but alleges that it did not receive any consideration for its guaranty, and denies the allegations of the complaint not expressly admitted,'qualified, or denied. The answer then proceeds to set out the considera
Counsel for the investment company correctly states, in his brief, the real question on this appeal. It is, does the proposed answer of the investment company state a substantial defense? He claims that the question should be answered in the affirmative, for the following reasons:
1. The allegation of the complaint as to the execution of the trust deed is put in issue by the general denial in the answer. The answer, however, admits the execution of the note and mortgage to William H. Eollins as trustee of the estate of Alfred W. Haven. This admission makes the issue as to the execution of the trust deed immaterial.
2. That the guaranty of the investment company was without consideration. The allegations of the complaint as to the execution of the note, mortgage, and guaranty are admitted by the answer. The contract of guaranty was written upon, and was a part of, the p'romissory note, which imports a consideration, and was delivered with it; hence the consideration of the note supports the guaranty. D. M. Osborne & Co. v. Gullikson, 64 Minn. 218, 66 N. W. 965.
3. That the release was a compromise by the trustee of a claim of doubtful value, by reason of the insolvency of the guarantor, and that the consideration for the release was the surrender of the possession of the mortgaged premises to the trustee, and the application of the rents at once for his benefit.
This claim is not sustained by the allegations of the answer, which does not allege that the investment company either surrendered the mortgaged premises to the trustee, or promised so to do,
Order affirmed.